NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4887-11T1
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION
Plaintiff-Respondent, October 10, 2014
v. APPELLATE DIVISION
GERALDO RIVERA, a/k/a GERARDO DIAZ and JUAN RIVERA,
Defendant-Appellant. ____________________________________
Argued January 23, 2014 – Decided October 10, 2014
Before Judges Grall, Nugent and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-03-0331.
Joseph J. Benedict argued the cause for appellant (Benedict and Altman, attorneys; Mr. Benedict and Philip Nettl, on the brief).
Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief).
The opinion of the court was delivered by
GRALL, P.J.A.D. A grand jury charged defendant Geraldo Rivera with
attempting to murder Sean and Michael Burns during a fight that
started at a bar inside a liquor store and ended in the parking
lot. The jury acquitted defendant of those charges but
convicted him of lesser-included offenses: with respect to Sean,
second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); and with
respect to Michael, fourth-degree aggravated assault, N.J.S.A.
2C:12-1b(3).1
The judge sentenced defendant to eight years' imprisonment
for the second-degree assault, subject to terms of parole
ineligibility and supervision required by the No Early Release
Act, N.J.S.A. 2C:43-7.2, and to a concurrent fifteen months'
imprisonment for fourth-degree assault. The judge also imposed
the monetary assessments and penalty mandated by N.J.S.A. 2C:43-
3.1 to -3.3, and a $3658 restitution obligation, a total of
$4038.
Certain facts were undisputed. The fight, verbal at first,
started after defendant questioned Sean about not leaving a tip
for the bartender, who was then defendant's fiancée. It ended
1 The grand jurors also indicted Sandeep Yadav and Sabiq Ponder and charged them with tampering with evidence, two counts of hindering apprehension and obstruction of a criminal investigation. N.J.S.A. 2C:28-6(a), :29-1, :29-3a(4). Prior to defendant's trial, Ponder was admitted to pre-trial intervention and Yadav pled guilty. Ponder testified for the defense at trial, and Yadav did not testify.
2 A-4887-11T1 with broken bottles inside and outside the establishment; Sean
with four knife wounds to his torso; Michael with a cut across
his abdomen that exposed his intestines and injured his stomach;
and defendant with two head wounds and a scar on his forehead.
The defense was self-defense. Defendant admitted to
swinging a utility knife he carried because of his work as a
linesman to defend himself against what he believed would be a
fatal "stomping" from the brothers. He also admitted that he
stabbed Sean and cut Michael in the process. Michael
acknowledged striking defendant in the head with a piece of
asphalt, which he claimed to have done because he saw defendant
stabbing Sean.
The participants in the fight - defendant, Michael and Sean
— and their respective eyewitnesses gave widely divergent
accounts of what happened between defendant's criticism of Sean
and the arrival of the police. Each side cast the other as the
aggressor, and there was no medical testimony. Thus, in
deciding whether the State proved that defendant was not acting
in self-defense, the jury had to decide between the conflicting
accounts of who did what and when.
The details of the conflicting accounts are not important
to resolution of the issues raised on this appeal. There is no
question that the evidence and reasonable inferences, viewed in
3 A-4887-11T1 the light most favorable to the State, provide adequate support
for the jury's verdict. Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (constitutional standard
for evidence adequate to withstand a motion for judgment of
acquittal); State v. Reyes, 50 N.J. 454, 459 (1967) (same). All
of defendant's claims concern the conduct of the assistant
prosecutor who tried the case, which defendant contends deprived
him of a fair trial. His contentions are as follows:
I. The State's violation of the [o]rder sanitizing his prior convictions should have resulted in a mistrial. (Raised below).
II. The State's misconduct in climbing into the jury box in the middle of cross- examination of State's witness should have resulted in a mistrial. (Raised below).
III. The trial court erred in permitting the introduction of hearsay statements Michael Burns made to Officer McCauley, which was compounded by the misuse of those statements in the State's summation. (Partially raised below).
IV. The State's comments in opening and summation deprived [d]efendant of a fair trial. (Partially raised below).
A. The State introduced an unduly prejudicial visual presentation during its opening statement which expressed an opinion as to [d]efendant's guilt in inflammatory ways. (Raised below).
B. The State improperly vouched for the
4 A-4887-11T1 credibility, or lack thereof, of witnesses in summation. (Not raised below).
C. The State misstated the law. (Raised below).
V. Cumulative error deprived [d]efendant of a fair trial.
For the reasons that follow, we conclude that the
cumulative impact of the assistant prosecutor's conduct deprived
defendant of a fair trial.
A.
The well-established principles guiding prosecutorial
conduct are easily stated and not unique to New Jersey. "[T]he
primary duty of a prosecutor is not to obtain convictions but to
see that justice is done. 'It is as much [a prosecutor's] duty
to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to
bring about a just one.'" State v. Timmendequas, 161 N.J. 515,
587 (1999) (internal citation omitted) (quoting State v.
Farrell, 61 N.J. 99, 105 (1972) (quoting Berger v. United
States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314,
1321 (1935))).
This case demonstrates the need to stress what those
principles require. Prosecutors must choose their tactics in
conformity with their legal duties. Thus, they are not free to
5 A-4887-11T1 employ a prejudicial tactic just because the precise action has
not yet been expressly condemned by the Supreme Court.
Similarly, when a reviewing court has declared a method improper
in a published opinion but concluded it to be harmless error in
that case, compliance with the prosecutor's obligation does not
permit repetition. A finding of harmless but improper
prosecutorial conduct cannot, consistent with a prosecutor's
duty, be understood as a license to mimic an improper method.
In this case, the cumulative impact of the prosecutor's
transgressions requires reversal. As the Supreme Court has
recently explained:
When legal errors cumulatively render a trial unfair, the Constitution requires a new trial. State v. Orecchio, 16 N.J. 125, 129 (1954). "'[W]here any one of several errors assigned would not in itself be sufficient to warrant a reversal, yet if all of them taken together justify the conclusion that defendant was not accorded a fair trial, it becomes the duty of [a reviewing] court to reverse.'" Id. at 134 (quoting State v. Dolliver, 150 Minn. 155, 184 N.W. 848, 849 (1921)). If a defendant alleges multiple trial errors, the theory of cumulative error will still not apply where no error was prejudicial and the trial was fair. See State v. D'Ippolito, 22 N.J. 318, 325-26 (1956) (rejecting application of Orecchio because none of alleged errors prejudiced defendant nor impaired fair trial). In assessing whether a defendant received a fair trial, courts are guided by the following principle: "'[D]evised and administered by imperfect humans, no trial can ever be entirely free of even the
6 A-4887-11T1 smallest defect. Our goal, nonetheless, must always be fairness. A defendant is entitled to a fair trial but not a perfect one.'" State v. Wakefield, 190 N.J. 397, 537 (2007) (quoting State v. R.B., 183 N.J. 308, 333-34 (2005)).
[State v. Weaver, ___ N.J. ___, ___ (2014) (slip op. at 35-36).]
Like Weaver, this "is a classic case of several errors,
none of which may have independently required a reversal and new
trial, but which in combination dictate a new trial." Id. at
47. Here, as in Weaver, the error involves a constitutional
right, and reversal is required unless we can "conclude that the
cumulative error was harmless beyond a reasonable doubt." Id.
at 48; see Chapman v. California, 386 U.S. 18, 24, 87 S. Ct.
824, 828, 17 L. Ed. 2d 705, 710-11 (1965).
Reversal of a conviction based on the prosecutor's conduct
is appropriate only if that conduct was "'so egregious that it
deprived [the] defendant of a fair trial.'" State v. DiFrisco,
137 N.J. 434, 474 (1994) (quoting State v. Pennington, 119 N.J.
547, 565 (1990)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949,
133 L. Ed. 2d 873 (1996). Stated differently, reversal is
warranted when the prosecutor's conduct "substantially
prejudice[s] the defendant's fundamental right to have a jury
fairly evaluate the merits of his or her defense." State v.
Harris, 181 N.J. 391, 495 (2004).
7 A-4887-11T1 Our courts have previously reversed convictions based on
the cumulative impact of a prosecutor's misconduct. See, e.g.,
State v. Frost, 158 N.J. 76, 87 (1999); State v. Hinds, 278 N.J.
Super. 1, 19 (App. Div. 1994), rev'd on other grounds, 143 N.J.
540 (1996). Long ago, the United States Supreme Court concluded
that a new trial is required where the prosecutor's misconduct
"was pronounced and persistent, with a probable cumulative
effect upon the jury which cannot be disregarded as
inconsequential." Berger, supra, 295 U.S. at 89, 55 S. Ct. at
633, 79 L. Ed. at 1321.
Even when the evidence is "overwhelming," strong evidence
of guilt can "never be a justifiable basis for depriving a
defendant of his or her entitlement to a constitutionally
guaranteed right to a fair trial." Frost, supra, 158 N.J. at
87; accord State v. Smith, 212 N.J. 365, 404 (2012) (quoting
Frost). Moreover, in a case such as this where the jury has to
choose which of two versions of an event to credit, "it simply
cannot be said that the evidence is overwhelming." Frost,
supra, 158 N.J. at 87.
Some particularized or specific rules have been recognized.
In Berger, the United States Supreme Court explained:
It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be
8 A-4887-11T1 faithfully observed. Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.
[295 U.S. at 88, 55 S. Ct. at 633, 79 L. Ed. at 1321].
Our Supreme Court has disapproved of any expression of
personal or official opinion or belief that a jury could
understand as based on something other than the evidence,
including a belief in the defendant's guilt "unless [the
prosecutor] makes it perfectly plain that his belief is based
solely on the evidence that has been introduced at the trial."
State v. Thornton, 38 N.J. 380, 398 (1962). The Court reasoned,
"that in the minds of jurors such statements may add the weight
of the prosecutor's official and personal influence and
knowledge to the probative force of the evidence
adduced . . . ." Ibid. For that reason, the Court concluded
that such statements "creat[e] the possibility that the jurors
consciously or unconsciously might adopt the prosecutor's view
without applying their own independent judgment to the
evidence." Ibid.
Other specific forms of advocacy inconsistent with a
prosecutor's duty have been expressly disapproved. Focusing on
disapproved conduct in this case, prosecutors generally may not
vouch for or bolster a State's witness, Frost, supra, 158 N.J.
9 A-4887-11T1 at 87; interfere with the jury's right to make a credibility
determination by improperly impugning the credibility of a
defendant's version of the facts, id. at 88-89; "comment on
facts not shown or reasonably inferable from the evidence in the
case," Farrell, supra, 61 N.J. at 102; or contend that the
police have no motive to lie or face special consequences if
they do, State v. R.B., 183 N.J. 308, 331-32 (2005); Frost,
supra, 158 N.J. at 85.
For ease of exposition, we address the conduct and
principles relevant to the defendant's claims of misconduct
separately and in the order in which the prosecutor took each
action at trial.
B.
A prosecutor's opening statement should be limited to what
the prosecutor "will prove" and "not anticipate" the
prosecutor's summation. State v. Ernst, 32 N.J. 567, 577
(1960). Defendant's core objection to the prosecutor's opening
statement is that the prosecutor declared him guilty of the two
attempted murders with which he was charged. The prosecutor did
that twice — graphically with the last screen of the PowerPoint
presentation accompanying his opening and orally in the final
sentence of his opening.
10 A-4887-11T1 The PowerPoint's twenty-first and final screen contains a
photograph showing defendant's face and neck, which is displayed
with a bright red border. It also includes text, printed in the
same color and density, "Defendant GUILTY OF: ATTEMPTED MURDER."
The words "Defendant" and "GUILTY OF:" appear on separate lines
to the right of defendant's photograph, and "ATTEMPTED MURDER"
appears below the photograph in much larger typeface.
In overruling defense counsel's objection to the
PowerPoint, the judge explained, "There's nothing specifically
prejudicial in the presentation. . . . [T]his is, merely in my
view, advocacy and the method by which Mr. Herring is presenting
his opening statement."
At the conclusion of the oral portion of his opening, the
prosecutor declared defendant guilty of attempted murder a
second time. He said, "Defendant is guilty of the attempted
murder of a man he stabbed five times and a man [whose]
intestines he tore out."2 Defense counsel did not object,
perhaps because his objection to the PowerPoint was overruled.
2 Sean testified that defendant stabbed him five times, but he explained that he sustained four wounds and that one stab did not penetrate at all. Michael testified that his intestines were "hanging out of [him]," but he did not testify that his intestines were injured, and, as previously noted, there was no testimony from a medical professional. Michael also testified that none of his "organs were hit," but he also said a "slice across [his] stomach" required surgery.
11 A-4887-11T1 Our courts have not yet addressed the use of PowerPoint
presentations during opening statements or summations in
criminal trials in a published opinion. Other courts have,
however, considered the matter.
The Nevada Supreme Court has concluded that a PowerPoint,
"as an advocate's tool, is not inherently good or bad" and that
"its propriety depends on content and application." Watters v.
State, 313 P.3d 243, 247 (Nev. 2013). The Court further
determined that a PowerPoint accompanying an opening is
permissible if "the content is consistent with the scope and
purpose of opening statements and does not put inadmissible
evidence or improper argument before the jury." Ibid.
We fully agree that the content, not the medium, is
important. That view is consistent with the approach our
Supreme Court has taken with respect to other technological
advances used in connection with trial court proceedings. See,
e.g., State v. Miller, 205 N.J. 109, 122 (2011) (directing that
in "responding to a request to review testimony, the trial
court's focus should be on the proper controls and limits needed
to ensure a fair proceeding, not the medium used to create a
record").
Faced with a pre-presentation challenge to use of a
PowerPoint in an opening, a court should apply the law governing
12 A-4887-11T1 opening statements. In some respects, use of PowerPoints has
potential to advance the interests of fairness in opening
statements because the court may direct removal of prejudicial
material before a prosecutor displays a slide to the jury. That
opportunity should not be lost.
Watters involved the prosecutor's display of a PowerPoint
slide in opening quite similar to the final slide in this
opening. The Court considered "whether the State's use of a
PowerPoint during opening statement that includes a slide of the
defendant's booking photo with the word 'GUILTY' superimposed
across it constitutes improper advocacy and undermines the
presumption of innocence essential to a fair trial." Watters,
supra, 313 P.3d at 245. The Court concluded that it did and
reversed the defendant's conviction. Id. at 249.
In Watters, the Court reasoned that the declaration of
defendant's guilt displayed by the prosecutor was an
impermissible expression of the prosecutor's personal opinion on
defendant's guilt at least as, if not more, effective in
undermining the presumption of innocence as a prosecutor's oral
proclamation of defendant's guilt in opening. Id. at 248.
The Court rejected the State's suggestion that declaring
the defendant guilty in opening is just a "different way[] of
saying" that the prosecutor will be asking the jury to find
13 A-4887-11T1 defendant guilty. Ibid. In the Nevada Supreme Court's view, a
declaration of the defendant's guilt, unlike an indication that
the State will ask the jurors to find the defendant guilty,
expresses the prosecutor's opinion. Ibid.
For several reasons, we agree that the difference is more
than semantic. A prosecutor's declaration of a defendant's
guilt, at best, implies that it is the prosecutor's opinion.
Our Supreme Court suggested that a prosecutor may state such a
belief if he or she makes it "perfectly plain" that the belief
"is based solely on the evidence that has been introduced at
trial." Thornton, supra, 38 N.J. at 398. But that cannot be
made "perfectly plain" in opening statements when no evidence
has been presented.
Our Supreme Court has consistently condemned conduct that
invades the exclusive province of the jury to resolve factual
disputes, assess credibility and decide whether the State's
evidence establishes guilt. State v. McLean, 205 N.J. 438, 463
(2011) (barring expert and lay opinion testimony on ultimate
issues, which are the province of the jury); State v. Denofa,
187 N.J. 24, 43 (2006) (declaring resolution of factual disputes
about territorial jurisdiction, an element of a crime, to be
within the province of the jury not the court); State v. Frisby,
174 N.J. 583, 595 (2002) (noting that expert opinion on a
14 A-4887-11T1 witness' credibility encroaches upon the province of the jury);
State v. Biegenwald, 106 N.J. 13, 44 (1987) (noting that a
judge's comments on the evidence "must be designed to avoid
unduly influencing or otherwise invading the province of the
jury"); see also State v. Bradshaw, 195 N.J. 493, 510 (2008)
(directing that "[a] prosecutor should neither argue facts that
are not in the record, nor expressly or implicitly vouch for the
credibility of the victim"); State v. Feaster, 156 N.J. 1, 81
(1998) (explaining that "[b]ecause it is exclusively within the
province of the jury to find fact and evaluate witness
credibility, a trial court may not vouch for the credibility of
a witness").
It is difficult to conclude that a prosecutor's declaration
of the defendant's guilt before the first witness is sworn would
not have invaded the province of the jurors. It is quite
similar to an investigating officer's giving expert or lay
opinion testimony on the ultimate issue. Moreover, such a
declaration in opening has the capacity to predispose the jurors
to take the prosecutor's view of the evidence "without applying
their own independent judgment." Thornton, supra, 38 N.J. at
398.
In Watters, the Court relied, in part, on a decision of the
United States Supreme Court, which we also find persuasive,
15 A-4887-11T1 albeit not controlling, Arizona v. Washington, 434 U.S. 497, 98
S. Ct. 824, 54 L. Ed. 2d 717 (1977). In that case, the Court
considered the propriety of a defense counsel's prejudicial
opening that led to a declaration of a mistrial. Id. at 511-13,
98 S. Ct. at 833-34, 54 L. Ed. 2d at 731-33. Relying on a case
involving prejudicial pre-trial publicity, the Court noted that
"[a]n improper opening statement unquestionably tends to
frustrate the public interest in having a just judgment reached
by an impartial tribunal" and to a greater degree than exposure
of one juror because "the entire panel may be tainted." Id. at
512, 98 S. Ct. at 834, 54 L. Ed. 2d at 732. The Court described
the harm flowing from defense counsel's improper opening in that
case as likely capable of preventing the jurors from "'act[ing]
with the independence and freedom on the part of each juror
requisite to a fair trial of the issue between the parties.'"
Ibid. (quoting Simmons v. United States, 142 U.S. 148, 155, 12
S. Ct. 171, 171, 35 L. Ed. 968, 968 (1891)). Threats to and
interference with the independence of the jury is the harm that
our courts have identified as inherent in conduct that invades
the province of the jury.
There is a difference between invasion of the province of a
jury occasioned by inadmissible opinion expressed by a
testifying witness and a prosecutor's declaration of a
16 A-4887-11T1 defendant's guilt in an opening to the jury. The difference is
that a jury generally is given clear direction on the fact that
an opening statement is not evidence. Importantly, in Arizona
v. Washington, the Court did not rule out the use of a curative
instruction as an alternative to a mistrial, as a remedial
measure for an improper opening. Indeed, the Court recognized
that prejudice from an improper opening may be curable in some
circumstances. 434 U.S. at 512-13, 98 S. Ct. at 834, 54 L. Ed.
2d at 732-33.
There is another problem presented by a prosecutor's
declaration of a defendant's guilt of the crime charged in the
State's opening. Such a declaration delivers a message in
conflict with the State's obligation to convince the jury of
defendant's guilt by proof of each element of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979). It does that by
suggesting the decision has been made. It is more akin to a
directive than advocacy, and it has the capacity to leave the
jury with a lessened sense of its weighty responsibility as the
sole judge of the facts and credibility.
In this case the elements of the crime the State was
required to prove included the absence of self-defense. State
v. Kelly, 97 N.J. 178, 200 (1984). That determination is fact
17 A-4887-11T1 sensitive and, in this case, largely based on credibility
determinations exclusively in the province of the jury.
We recognize the deference owed to a judge's discretion in
matters such as the content of opening statements and use of
visual aids. See, e.g., State v. Tilgham, 385 N.J. Super. 45,
53-58 (App. Div.), certif. granted limited to sentence and
summarily remanded, 188 N.J. 269 (2006). But the question
whether it is permissible for a prosecutor to display a slide
containing defendant's picture and text declaring him guilty of
the crime charged in an opening statement involves, at least in
this case, an application of the law governing opening
statements to undisputed facts — the content of the PowerPoint.
It is, therefore, a matter on which we owe no deference to the
trial judge's determination. State v. Gamble, 218 N.J. 412, 425
(2014). And, we hold a display and oral declaration of
defendant's guilt in an opening statement is an egregious
interference with defendant's right to a fair trial. Such an
interference is highly likely to "substantially prejudice[] the
defendant's fundamental right to have a jury fairly evaluate the
merits of" his defense. Harris, supra, 181 N.J. at 495.
Egregious misconduct may or may not be sufficient to raise
a reasonable doubt about the convictions, depending on the
efficacy of the action taken by the judge to eradicate the
18 A-4887-11T1 apparent prejudice. See, e.g., Dolphy v. State, 707 S.E.2d 56,
57-58 (Ga. 2011) (where the trial court sustained the defense
objection to PowerPoint slides declaring "Defendant's Story Is a
Lie" and asserting that "People Lie When They Are Guilty" and
gave an "immediate corrective action, ordering that the slides
be taken down" and an adequate curative instruction); cf. State
v. Sucharew, 66 P.3d 59, 64 (Ariz. Ct. App. 2003) (finding no
abuse of discretion in allowing a prosecutor to use a PowerPoint
that consisted of pictures provided in discovery and later
admitted into evidence at trial and descriptive text echoing the
prosecutor's oral statements in opening to which there was no
objection); but cf. In the matter of Personal Restraint of
Glasmann, 286 P.3d 673, 709 (Wash. 2012) (reversing convictions
based on the prosecutor's use of a PowerPoint in summation that
included a "mug shot" of the defendant with accompanying text
declaring him guilty on the ground that "the misconduct was so
flagrant and ill intentioned that an instruction would not have
cured the prejudice").
In this case, the only curative instruction did not
adequately address the prejudice. As noted, the judge overruled
defense counsel's objection to use of the PowerPoint in opening
and gave no specific instruction to the jurors on how they might
19 A-4887-11T1 consider the slide in issue, or for that matter any of the other
twenty slides.
The court did instruct the jury during the prosecutor's
opening, but that instruction followed a different objection.
The first sentence of the prosecutor's oral opening was: "Good
afternoon. If we had been outside [the liquor store/bar] on a
Tuesday night, just about [ten] o'clock, we would have seen that
man try to kill two people." Defense counsel objected to the
prosecutor speaking about what "we would have seen," but the
judge directed the prosecutor to continue.
Defense counsel objected a second time when the prosecutor
said, "Defendant stabbed Sean five times. He might have kept
going." The judge immediately directed the jury that an opening
statement "is not evidence" and continued:
Ladies and gentlemen, this is not evidence. [O]pening statements are what the lawyers are telling you they intend to prove.
All right. You're not to speculate as to what a [d]efendant might or might not be doing. You have to ultimately, base your determination on what the evidence is. The opening statement, again, is not evidence. It's only what the State intends to prove in the case.
That instruction is not sufficiently pointed to allow us to
conclude that the jurors understood it to refer to the displayed
and oral declarations of defendant's guilt. Nor are we willing
20 A-4887-11T1 to assume that conduct had no impact on the trial because the
jury found defendant not guilty of attempted murder. The jury
also had to reject defendant's claim of self-defense to find him
guilty of the lesser-included crimes, and the prosecutor's
opening declarations of guilt were prejudicial to its
consideration of that defense.
We need not decide if the opening statement and PowerPoint
were, in themselves, sufficiently prejudicial to require a new
trial because there was additional conduct inconsistent with the
prosecutor's obligation to try the case fairly.
C.
We turn to consider what can only be described as the
prosecutor's antic during the testimony of the State's first
witness, Sean Burns. During defense counsel's cross-examination
of Sean, the prosecutor climbed into the jury box. When the
prosecutor engaged in that bizarre behavior, defendant was
assisting his attorney by operating a device used to replay
segments of the recording of Sean Burns' statement to the
police. Defense counsel was using segments of that recording to
point out inconsistencies between Sean's testimony and his out-
of-court statements. For reasons not clear on this record, the
device was on the prosecutor's table. Defendant, with the
judge's prior approval, was seated there.
21 A-4887-11T1 "For the record," the prosecutor said: "Mr. Rivera is
actually set up [at] the State's table using [a] laptop computer
hooked onto the projector, using the microphone from the witness
stand in order to play the sections, and I believe Mr. Rivera is
actually doing that." With that introduction, he advised the
judge, "The State is trying to find somewhere to be. So I think
just so it's clear on the record."
Indicative of the lack of context of a statement about the
clarity of the record, the judge asked, "What's clear?" The
prosecutor said, where Sean Burns "was looking."
The prosecutor apparently found somewhere else to be for
some time. He did not get into the jury box until cross and
redirect were completed. He did that during defense counsel's
re-cross. Defense counsel asked Sean whether he had told an
officer that he thought defendant was "a sissy." And after
that, defense counsel asked his client to set up the video.
The judge addressed the prosecutor as follows: "Mr.
Herring, can you please come out of the jury box? I don't want
you that close to the jury." As defendant attempted to set up
the video, the judge called the attorneys to sidebar, but he
spoke to them off the record.
22 A-4887-11T1 Thereafter, defendant's lawyer told his client that they
would play the video later. The prosecutor called his next
witness.
The following day defense moved for a mistrial based on the
prosecutor's untoward incursion into the jury box. Defense
counsel noted that he had not seen the prosecutor get into the
jury box but saw him climbing out of it when the judge addressed
him. At oral argument in this court, the State confirmed that
there is no entrance to the jury box from the area of the
courtroom where counsel tables are located.
During his argument on this motion for a mistrial in the
trial court, defense counsel acknowledged that he did not know
why the prosecutor climbed in but asserted that it was "highly
inappropriate." He suggested that the prosecutor could have
been "trying to engender [sic] himself to the jury" or "trying
to give an indication that he was afraid of [defense counsel's]
client." Defense counsel noted, as the judge had implied at the
time of the incident, that there were other places the
prosecutor could have gone. Defense counsel suggested that the
action invaded the province of the jury.
There is no question that the prosecutor invaded the
"space" reserved for the jury. In defense counsel's opinion,
the conduct was so unheard of and so improper as to warrant a
23 A-4887-11T1 mistrial. He indicated that it was the "craziest" thing he had
ever seen done.
The prosecutor noted that he was just looking for a place
to stand and write. He acknowledged that it was "probably not
the best place for [him] to stand." He did not, however, offer
any other explanation beyond the need for a place to stand and
write, which he said he could do inside the jury box.
The judge asked defense counsel to identify the prejudice,
but defense counsel could not point to anything more specific.
Although the judge recognized the impropriety of the
prosecutor's action, he concluded that his prompt response and
defense counsel's inability to identify any specific prejudice
precluded a mistrial. The judge gave the jury no additional
instruction on the point.
It is difficult to identify the prejudice with any
precision, but the prosecutor's action was, at best, a
distracting antic inconsistent with the seriousness of the
prosecutor's obligation to do justice and undoubtedly a
distraction to the jurors. The fact that the prosecutor made a
"record" in advance, suggests a plan. Although one cannot
discern what the individual jurors actually inferred from the
behavior, we cannot rule out the likelihood that one or more of
24 A-4887-11T1 them would have inferred what defense counsel suggested — fear
of his client.
The conduct could have easily led one or more jurors to
infer what the prosecutor allowed to be implied — that defendant
was too dangerous or untrustworthy to be near. There is no
question that the judge's prompt order directing the prosecutor
to move clearly indicated that what the prosecutor did was
wrong. It did not, however, address the potential prejudice at
all. Thus, we conclude that this antic added to the prejudice
engendered by the opening statement.
D.
Defendant's third assertion of prosecutorial misconduct is
based on the prosecutor's cross-examination of defendant, which
disclosed that defendant had a prior conviction "for resisting
arrest by force." Defendant had two prior convictions for
crimes of the third degree. One of them was for theft of
movable property in 2004, for which he received a sentence of
two years' probation. The other was for resisting arrest in
2006, N.J.S.A. 2C:29-2, for which he received a sentence of five
years' probation, with credit for time served pending
conviction.
Defendant's judgment of conviction for resisting stated
that it was for third-degree resisting in violation of "N.J.S.A.
25 A-4887-11T1 2C:29-2."3 N.J.S.A. 2C:29-2 provides two distinct bases for
elevating the grade of resisting from a crime of the fourth to a
crime of the third degree. N.J.S.A. 2C:29-2a(3)(a)-(b).
Pursuant to paragraph (a), it is a third-degree crime if the
person "use[d] or threaten[ed] to use physical force or violence
against the law enforcement officer or another." Pursuant to
paragraph (b), the crime is elevated if the person used "any
other means to create a substantial risk of causing physical
injury to the public servant or another."
Quite obviously, one can create a substantial risk of
physical injury by means other than force. Because defendant's
judgment did not specify which paragraph applied to him, it did
not provide any basis for the prosecutor to ask defendant about
resisting "by force."
In addition to the lack of a factual basis for the
question, the prosecutor's reference to the crime underlying the
conviction violated a ruling made by the judge at a hearing
outside the presence of the jury on the admissibility of
defendant's prior conviction to impeach his credibility.
N.J.R.E. 104; N.J.R.E. 609. At the conclusion of that hearing,
the judge granted the prosecutor's motion to use defendant's
3 That judgment is not included in the record on appeal, but it was discussed on the record at trial.
26 A-4887-11T1 prior convictions to impeach defendant. But the judge also
granted defense counsel's motion for sanitization of defendant's
convictions — that is a ruling precluding reference to the
underlying crimes in accordance with State v. Brunson, 132 N.J.
377, 380 (1993).
The judge's ruling under Brunson was not ambiguous.
Clarifying the scope of defendant's request, he asked defense
counsel whether he wanted the jury told that defendant "was
convicted of two separate third-degree crimes." Defense counsel
confirmed the judge's understanding and added, "and sentenced to
probation." The judge indicated that the prosecutor could use
the "conviction and the sentence and the date of the conviction"
for the jury to consider "as bearing on your credibility" but
could not use the convictions to argue defendant's
"predisposition to commit a crime."
At that point, the prosecutor asked if he could mention
that defendant was on probation when he committed the crime
underlying his second prior conviction. The judge said,
"Certainly, the dates are admissible and the length of probation
is admissible and the degree of the crime is admissible."
If there were any room for confusion about the ruling on
the prosecutor's part, Brunson forecloses it. In Brunson, the
Court held
27 A-4887-11T1 that in those cases in which a testifying defendant previously has been convicted of a crime that is the same or similar to the offense charged, the State may introduce evidence of the defendant's prior conviction limited to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which defendant was convicted. That method of impeachment will insure that a prior offender does not appear to the jury as a citizen of unassailable veracity and simultaneously will protect a defendant against the risk of impermissible use by the jury of prior-conviction evidence.
[132 N.J. at 391-92.]
The Court elaborated:
To impeach the credibility of a testifying defendant, the State may introduce into evidence only the number, degree, and date of the defendant's prior similar convictions. When a defendant has multiple prior convictions, some of which are similar to the charged offense and some of which are dissimilar, the State may introduce evidence only of the date and degree of crime of all of the defendant's prior convictions, but cannot specify the nature of the offenses. Alternatively, the State may introduce without limitation evidence of only the dissimilar convictions. . . .
[132 N.J. at 394.]
In requiring the sanitization of all prior convictions
presented by the prosecutor, even when only one of them is for a
crime "similar" to the one at issue in the trial, the Supreme
Court explained that its purpose was "to avoid the speculation
28 A-4887-11T1 that inevitably would occur if evidence were introduced to prove
the theft conviction and the convictions of the unidentified
crimes." Id. at 393.
Defense counsel was the first to violate the judge's order
and Brunson's rule precluding reference to any crime underlying
a prior conviction where one is similar. During his direct
examination of his client, the lawyer referred to defendant's
first conviction being a conviction for theft. The State did
not object to the reference or seek the judge's guidance on how
to proceed. Instead, the next day, during his cross-examination
of defendant and without seeking leave, the prosecutor posed the
offending question. He asked defendant, "In March of 2006, you
were convicted of resisting arrest by force. Right?" (emphasis
added). Defendant responded: "I don't know by force. I know it
was a resisting arrest, yes."
Defense counsel asked for a sidebar. Referencing the
judge's ruling on Brunson, he admitted that he had
"inadvertently brought out the fact that there was a theft."
The judge said, "I did sanitize it."
Defense counsel then pointed out that resisting arrest and
the crimes at issue were crimes involving violence, and the
judge again observed that the prosecutor had said "Force."
Defense counsel argued that only a mistrial could cure the
29 A-4887-11T1 prejudice given his client's claim of self-defense and the
prosecutor's disregard of the judge's ruling.
The judge called on the prosecutor for a response, and he
said: "[I] apologize if I misunderstood the [c]ourt's ruling. I
believe the [c]ourt sanitized everything except the charge, the
level of degree, the date of conviction."
The judge recessed and returned to rule as follows:
Despite my [o]rder, the [p]rosecutor revealed in his question to the jury the [d]efendant was convicted of a resisting arrest and inaccurate word by "force."
What I intend to do is to tell the jury that question was inaccurate and improper and that I will instruct the jury that they're not to conclude the fact that the [d]efendant committed a crime, any crime, that he's more likely to have committed the crime charged here simply because he committed a crime on another occasion. And the jury has a right to consider whether a person who has previously failed to comply with society's rules and demonstrated through criminal convictions would be more likely to lie on the witness stand than a person who was never convicted of any crime.
The judge's characterization of the prosecutor's use of the
phrase "by force" as "inaccurate and improper" was well-
warranted. It was inaccurate because, as noted above, the
judgment did not indicate that defendant resisted an arrest by
force and the State had no evidence other than the judgment. It
was "improper" because of the judge's unambiguous ruling
30 A-4887-11T1 sanitizing defendant's convictions and the rule announced in
Brunson.
Nevertheless, the prosecutor said, "I did not understand
that to be the [c]ourt's ruling." He then read from his own
notes, which included the names of the crime but not the phrase
by force.
The judge asked the prosecutor, "If I grant the application
to sanitize the conviction, what was I doing if you can bring
out the nature of the conviction?" Instead of answering the
judge's question, the prosecutor pointed to defense counsel's
reference to theft on direct examination of his client. He said
he had concluded that defense counsel had, "either for strategic
or tactical reasons[,] overlooked the second nature of the
conviction [sic4]. As a result, I stomped onto it." (emphasis
added). This is another instance of egregious misconduct.
The judge denied a mistrial concluding that a curative
instruction would eradicate the prejudice. When the jury
returned and defendant resumed his seat in the witness box, the
judge gave this instruction:
All right. Ladies and gentlemen, before we broke, the [p]rosecutor was asking the witness questions, and he was asking the
4 Presumably, the prosecutor meant to say the nature of the second conviction.
31 A-4887-11T1 witness questions about two prior convictions. The [p]rosecutor's questions of this witness were not only improper, but they were inaccurate.
All right? Now, you can use evidence, ladies and gentlemen, evidence of a crime in determining the credibility or believability of the [d]efendant's testimony. In the State of New Jersey there are four degrees of crimes: First, second, third and fourth. First degree being the most serious, fourth degree being the least serious.
In this case, the [p]rosecutor, and I think even [d]efense [c]ounsel elicited that this [d]efendant had been convicted in the past of two third-degree crimes.
Now, you cannot conclude, ladies and gentlemen, that the [d]efendant committed the crime charged in this case or is more likely to have committed the crime charged in this case simply because he committed a crime on another occasion. You, as the jury, have a right to consider whether a person who has been previously — who has previously failed to comply with society's rules as demonstrated through a criminal conviction would have been more likely to ignore the oath requiring truthfulness on the witness stand than a person who's never been convicted of any crime.
You can consider in determining this issue the nature and degree of the prior conviction and when they occurred. Our law permits a conviction to be received in evidence only for the purpose of affecting the credibility of the [d]efendant and not for any other purpose.
So if you infer from the [p]rosecutor's question that this [d]efendant is more likely to have committed this offense merely because he was convicted of another crime,
32 A-4887-11T1 you are not to make that inference. Do you understand that?
Thank you. Let's go on.
Because the cumulative impact of the prosecutor's conduct
requires reversal, there is no reason to address defendant's
claim of error in the denial of a mistrial.5 With respect to
cumulative misconduct, the question is whether the judge's
curative instruction was adequate.
This curative instruction was "firm" and "accomplished
without delay" as it should be where evidence of a defendant's
propensity for conduct similar to the conduct charged is
admitted. State v. Vallejo, 198 N.J. 122, 134-35 (2009). The
problem with this curative instruction is that the judge was not
sufficiently specific to give "clear" guidance. Ibid. The
Supreme "Court has consistently stressed the importance of
immediacy and specificity when trial judges provide curative
instructions to alleviate potential prejudice to a defendant
5 "The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court" and subject to deferential review. State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). It is an extraordinary remedy and not employed where there is "an appropriate alternative course of action." State v. Allah, 170 N.J. 269, 281 (2002). It is worth noting that one of the Supreme Court's reasons requiring sanitization of similar convictions was its determination that the inherent prejudice was "unlikely to be cured by a limiting instruction." Brunson, supra, 132 N.J. at 391.
33 A-4887-11T1 from inadmissible evidence that has seeped into a trial." Id.
at 135 (emphasis added); see id. at 135-36 (citing and
discussing the cases). What was required in this circumstance
was an instruction explaining precisely the permitted and
prohibited uses of the defendant's prior convictions with
reference to resisting and force. See State v. Marrero, 148
N.J. 469, 495 (1997) (discussing the required instruction where
other crimes evidence is deemed admissible for a limited purpose
pursuant to N.J.R.E. 404(b)).
In this case, the judge did not tell the jury he was
talking about the prosecutor's reference to a conviction for
resisting arrest by force, which defendant had admitted, in
part, in response to the prosecutor's improper question.
Moreover, the judge did not direct the jury that it could not
give any consideration or weight to the prosecutor's
characterization of defendant's conduct as resisting arrest or
as involving "force" for any purpose or in deciding any question
in the case.
"Because the jury instruction was inadequate, we have no
alternative but to assume that the jurors" used the information
as evidence of defendant's propensity for criminal use of force
— a highly prejudicial consequence in this case involving a
claim of self-defense. Vallejo, supra, 198 N.J. at 137. To be
34 A-4887-11T1 clear, if not concise, the problem with the instruction is that
the judge did not tell the jurors not to consider, in any way,
the crime underlying defendant's conviction as stated by the
prosecutor — resisting by force. Moreover, having told the
jurors that what the prosecutor said about that crime was
inaccurate, the judge's instruction left them to speculate about
what defendant did to warrant that conviction, a type of
prejudice the Court recognized in Brunson.
Because defense counsel had a role in the error and because
the prosecutor seemed to believe that defense counsel's
erroneous reference to theft gave him a right to "stomp on it,"
we pause to stress that the prosecutor was wrong. In Brunson,
the Court indicated that "[a] defendant may choose to waive the
protection afforded by" the Court's rule of sanitization. 132
N.J. at 392. We do not understand the Court's reference to
waiver as assigning the prosecutor any authority to decide
whether a defendant has waived that protection. The judge has
the discretion and obligation to apply Brunson so as "to exclude
evidence the prejudicial effect of which seriously compromises a
defendant's right to a fair trial." 132 N.J. at 400 (Handler,
J., concurring). It is not assigned to the prosecutor. Even if
it were, under Brunson disclosure of similar crimes is not one
35 A-4887-11T1 of the options available to the prosecutor. This instance of
misconduct adds to the prejudice.
E.
The prosecutor further added to the cumulative impact of
his misconduct in summation. It is improper for a prosecutor to
express his personal opinion on the veracity of any witness.
State v. Marshall, 123 N.J. 1, 154 (1991). But, referring to
Michael Burns, the prosecutor declared, "[T]he reality is he's
not lying." The prosecutor also said, "[t]he defendant is lying
to you." Arguably, the assertion about Michael was sufficiently
tied to the evidence, but the more prejudicial assertion about
defendant lying was not supported by the evidence the prosecutor
referenced — blood on the door frame. As we understand the
testimony, the blood was never tested and, for that reason that
evidence did not support the prosecutor's claim that defendant
was lying to the jury.
The prosecutor also made improper use of evidence admitted
for the limited purpose of explaining why the officers took
certain steps in the investigation. He used the officer's
testimony to bolster the credibility of Michael Burns. Text on
two of the PowerPoint slides used in opening and summation makes
the same use of the officers' testimony by repeating what
Michael told them.
36 A-4887-11T1 In addition, the PowerPoint the prosecutor used in
summations included statements about the law of self-defense
that were so oversimplified as to be misleading. Worse, those
oversimplifications provided appealingly easy "take aways," as
those schooled in PowerPoint presentations aptly put it.
The first four of the five final slides of the PowerPoint
used in summation were as follows: the first, a definition of
attempted murder with "GUILTY" superimposed in typeface that
obscures the words; the second, a slide with a caption asserting
"CANNOT BRING A KNIFE TO A FIST FIGHT" and with text purportedly
reciting the law on the use of deadly force that is largely
obscured by superimposed text in a red box that advises "NO
SELF-DEFENSE TO USE DEADLY FORCE"; the third, a slide with a
caption asserting "CANNOT KILL AS FIRST CHOICE," with text
largely obscured by superimposed text in a red box that repeats
"NO SELF-DEFENSE TO USE DEADLY FORCE"; and a slide with boxes of
text that cannot be read because they are obscured by one
superimposed word – "GUILTY" - in typeface that is large enough
to essentially fill the slide.
Without question, the oversimplifications were prejudicial
to a claim of self-defense by a defendant who claimed to have
taken his work knife from his pocket to defend against what he
37 A-4887-11T1 claimed he thought was an imminent and life-threatening attack
by the Burns brothers.
Finally, returning to his initial error in his opening, the
prosecutor closed his summation by saying: "The [d]efendant is
guilty of trying to kill Sean and Michael Burns. Hold him
responsible for what he did." The final slide in the summation-
PowerPoint is the same as the final slide in the opening —
defendant's photograph and text declaring "Defendant GUILTY OF:
ATTEMPTED MURDER."
We recognize that the judge instructed the jury on law and
gave an appropriate instruction directing that what he said
about the law was controlling. In addition, the judge directed
the jurors to rely on their recollection of the evidence, not
the summations of counsel. But the sheer quantity and variety
of highly prejudicial remarks, visual displays and a courtroom
antic, give us reason to have serious doubt about the jurors'
capacity to follow those instructions. See State v. Manley, 54
N.J. 259, 270 (1969) (discussing courts' need to rely on jurors'
capacity to follow instructions); but cf. State v. Winter, 96
N.J. 640, 649 (1984) (noting that "[t]he record lends no support
to the suggestion that the jurors were unable to comply with the
court's instruction"); State v. Catlow, 206 N.J. Super. 186, 193
(App. Div. 1985) (noting that the record revealed "no reason to
38 A-4887-11T1 believe that the jury was unable to follow the court's sharp and
complete curative instruction"), certif. denied, 103 N.J. 465
(1986) (quoted in Vallejo, supra, 198 N.J. at 135).
F.
Despite the judge's efforts, the cumulative impact of the
prosecutor's misconduct leaves us with significant doubt that
defendant received a fair trial. Accordingly, we reverse his
convictions and remand for further proceedings.
39 A-4887-11T1