Goldmann, Foley and Lewis. Goldmann, S.j.a.d.
Defendant was indicted, tried and found guilty by a jury of rape (N.J.S. 2A:138-1) and robbery (N.J.S. 2A:141-1). His motion for a new trial was denied. Defendant was sentenced to State Prison terms of 15-20 years and 5-10 years for these respective crimes, the sentences to run consecutively. On this in forma pauperis appeal he seeks reversal because (1) the remarks of the prosecutor in summation constituted an appeal to bias and prejudice; (2) there was error in the admission of testimony and in the court's charge; (3) the verdict was against the weight of the evidence and the result of mistake, passion or prejudice; and (4) defendant's rights were violated when he was not permitted to make a statement on his own behalf at the time of sentence.
Defense counsel at no time objected to the prosecutor's remarks in summation. However, he claims plain error under R.R. 1:5-1(a). To establish plain error, a defendant must demonstrate that there was "legal impropriety affecting [his] substantial rights * * * and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error posessed a clear capacity to bring about an unjust result." State v. Corby , 28 N.J. 106, 108 (1958); State v. Hipplewith , 33 N.J. 300, 309 (1960). We do not find plain error within the definition of the Corby case. The prosecutor's comments
did not fall within the prohibited area exemplified by State v. Ferrell , 29 N.J. Super. 183 (App. Div. 1954), or State v. Bogen , 13 N.J. 137 (1953), on which defendant relies.
We need deal with only the second of the two comments made by the prosecutor which defendant characterizes as a "glaring appeal to bias and prejudice." Referring to the testimony of the victim, he said
"* * * She was under great tension. I am convinced now that that is no act; she was in fear of her life and I think if your wife or your sister or your daughter would be subjected to that [her testimony had been that defendant had threatened to kill her when she screamed], that any woman would be fearful of death itself and I think any woman would do the same as this woman did. She thought she would have been killed or something. Consider that if it were your daughter or your wife or your sister or anyone, whether they would not have done what this woman did."
While this was an emotional projection of the prosecutor's argument that the victim's testimony was worthy of credence, we cannot say that in the entire circumstances of the case it amounted to plain error within the meaning of the rule. Our courts have recognized that a prosecutor often presents his case graphically and forcefully, and that it is "unreasonable to expect that criminal trials will be conducted without some show of feeling." State v. Johnson , 31 N.J. 489, 510 (1960).
On redirect examination, the prosecuting attorney asked the victim, "Just to sum this whole thing up, Mrs. [A], were you raped that night?" The answer was, "Yes." Defense counsel objected because the question was not proper redirect. The court permitted the question and answer to stand. The matter was in the court's discretion, and we see no abuse.
Defendant complains that the court erred in permitting Police Sergeant Ike to testify as to certain photographs he had taken of the scene of ...