DOCKET NO. A-4370-10T4
Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Hunter, of counsel and on the brief). Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel; Matthew P. Tallia, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and O'Connor.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 09-05-0763 and 09-05-0773.
Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Hunter, of counsel and on the brief).
Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel; Matthew P. Tallia, on the brief). PER CURIAM
In this appeal, we consider whether various comments made by the prosecutor during his opening statement require a reversal of the judgment of conviction. As we conclude that the prosecutor's comments deprived defendant of the right to a fair trial, we reverse the judgment of conviction and remand for a new trial. Given our disposition, we need not reach the additional points raised by defendant in this appeal.
Defendant also contended he was deprived of a fair trial due to (1) an instruction that the jury was prohibited from drawing any negative inferences from the State's failure to call certain witnesses; (2) the court's failure to give a Clawans charge pursuant to State v. Clawans, 38 N.J. 162 (1962); (3) the introduction of inadmissible hearsay into evidence; and (4) the failure of the court to give defendant all jail credits to which he was entitled. The State did not dispute the last contention.
The jury convicted defendant of first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); and certain persons not to have weapons, N.J.S.A. 2C:39-7(b).
The evidence adduced during the trial relevant to the issues on appeal is as follows. The State's principal witness, Hannah Cohen, testified her brother had stolen money from defendant. A few days after the theft, defendant approached Cohen while she was seated in a car adjacent to an apartment complex known as Potters. Defendant put a gun to her head, and demanded to know the whereabouts of his money and her brother. He then reached through her window and grabbed her purse and the keys from the ignition. Defendant ran to the other side of the car and, after pointing a gun at a passenger, left the scene. Before leaving, defendant told Cohen she could get her purse back when she delivered to him either her brother or the cash he owed.
On cross examination Cohen admitted giving the police a statement indicating her window was not down far enough to enable defendant to reach into the car and take the keys and her purse. There were problems with the credibility of two eyewitnesses called by the State, as well. One eyewitness testified to seeing defendant leave the scene with a gun and a purse, but admitted to previously telling the police that he had not seen defendant leave the scene with either a gun or a purse. Another eyewitness testified to seeing defendant point a gun at Cohen and the passenger, as well as grab the purse and keys from the ignition, but the eyewitness also maintained defendant remained on the driver's side of the car throughout the entire incident.
The challenged statements made by the prosecutor during his opening were as follows:
• "I represent you, the people of the State of New Jersey."
• "The defendant is a very well-known person in the Potters housing project in Edison."
• "And everybody knows you can't mess with Thomas Raiford."
• "Welcome to the part of New Jersey you didn't know about."
At the conclusion of the opening statement, the defense attorney objected to all of the above remarks, following which the court gave the jury the following instruction:
Just a couple quick things before counsel for the defendant makes some statements. [The assistant prosecutor] represents the Prosecutor's Office. In that respect it's all he represents. He's here arguing on behalf of the Prosecutor's Office. That's exactly how you should perceive his argument, representing the State.
Other than that, I want to just remind you very strongly opening statement is not evidence. It should not affect you in any way whatsoever except to listen attentively to those things which the State believes they can prove. You'll find the evidence from the testimony presented, what comes from the witness chair, not from any inferences that may be drawn as a result of a statement made by counsel.
Everybody clear? You find evidence from the testimony. Statements by counsel not evidentiary. Do not consider them so in any way, shape or form. Okay? No emotion should be swaying you in any way, shape or form. This case must be decided objectively. Okay?
"Our jurisprudence requires that prosecutors act in accordance with certain fundamental principles of fairness." State v. Wakefield, 190 N.J. 397, 436 (2007). "The primary duty of a prosecutor is not to obtain a conviction but to see that justice is done, and therefore, a prosecutor should refrain from improper methods calculated to produce a wrongful conviction." State v. Scherzer, 301 N.J. Super. 363, 433 (App. Div. 1997). "[A prosecutor] is not an ordinary adversary; he represents the State whose interest is served by an untainted judgment firmly rooted in facts alone. There is no room for unfair advantage, clever or bald." State v. West, 29 N.J. 327, 338 (1959).
While prosecutors "within reasonable limits are afforded considerable leeway in making opening statements . . . [,]" State v. Williams, 113 N.J. 393, 447 (1988), comments in opening statements are to be limited to "facts [they intend] in good faith to prove by competent evidence[,]" State v. Hipplewith, 33 N.J. 300, 309 (1960). Further, it is settled law that "a prosecutor may not offer evidence of the defendant's character to support an inference about the defendant's conduct on a specific occasion unless the defendant has first produced evidence of good character." State v. Hunt, 115 N.J. 330, 369 (1989); see N.J.R.E. 404(a)(1). Therefore, unless reasonably certain such evidence will be raised by a defendant, a prosecutor should refrain from making any comments about a defendant's character in an opening statement.
Not every act of prosecutorial misconduct mandates a reversal. To warrant reversal, the prosecutorial misconduct must have been so egregious that it deprived the defendant of a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999). To determine whether a prosecutor's comments were sufficiently egregious to justify the reversal of a conviction, a court must
consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred. Specifically, the Court should consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them."
[Id. at 575-76. (Citations omitted).]
First, defendant made a prompt and timely objection to all of the subject comments made by the prosecutor at the conclusion of the State's opening; the comments were not withdrawn by the prosecutor; and the court neither struck from the record nor instructed the jury to disregard the remarks.
Second, the comments were egregious and substantially prejudiced defendant's fundamental right to a fair trial. The jury was told that defendant was very well known in the Potters housing project and that "everybody knows you can't mess with [defendant]." The implication was defendant had engaged in criminal activity in the past and was infamous for being vindictive, a suggestion that was especially detrimental to defendant given the evidence defendant committed the acts of aggravated assault and armed robbery upon Cohen in retaliation for her brother's theft. The comment improperly planted in the minds of the jury that defendant had a predilection for retribution, which could have improperly induced the jury to conclude defendant committed the crimes against Cohen.
Further, the prosecutor's comment was delivered during an opening statement, which is a time when "[t]he jury was receiving its first impression of the case and therefore . . . was strongly influenced by what transpired." State v. Spano, 64 N.J. 566, 567 (1974). Finally, the State itself conceded during oral argument that the comment "[a]nd everybody knows you can't mess with Thomas Raiford" was not appropriate. As the comment had the clear capacity to inappropriately induce the jury into believing defendant was predisposed to committing the subject crimes, defendant was deprived of a right to a fair trial.
In addition, at the outset of his opening statement the prosecutor told the jury that he represented "you, the people of the State of New Jersey." It was improper for the prosecutor to attempt to align himself with the jury and suggest he was its advocate, not to mention all of the people of the State of New Jersey. See State v. Negron, 355 N.J. Super. 556, 576-77 (App. Div. 2002). The comment implied the prosecutor and the jury were members of the same group, to the exclusion of defendant, who was not part of the collective known as the "people of the State of New Jersey" but rather was an outcast.
We are satisfied the prosecutor's misconduct was sufficiently egregious to deprive defendant of a fair trial. The judgment of conviction is reversed and the matter remanded for a new trial.
I hereby certify that the foregoing is a true copy of the original on file in my office
CLERK OF THE APPELLATE DIVISION