For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For affirmance -- None. The opinion of the Court was delivered by Proctor, J.
[61 NJ Page 101] Defendant Farrell was convicted by a jury of robbery (N.J.S.A. 2A:141-1) while armed (N.J.S.A. 2A:151-5), and sentenced to a 14-15 year term for the robbery and a consecutive 4-5 year term for being armed. The conviction was sustained in an unreported opinion by the Appellate Division and we granted certification upon defendant's petition. 59 N.J. 289 (1971).
At the trial the only evidence linking the defendant with the robbery was the testimony of Harold Lutz, who had pleaded guilty to the same indictment but had not yet been sentenced. He said that while armed he robbed the cashier of a drive-in theater, taking about $200. He further testified the defendant suggested the robbery, provided the gun, drove him to and from the scene of the crime and split the money with him.
The primary contention on this appeal is that the prosecutor made improper remarks during summation which prejudiced the defendant. We agree.
It is error for a trial judge to permit a prosecutor in summing up to comment on facts not shown or reasonably inferable from the evidence in the case. State v. Hill, 47 N.J. 490, 499 (1966); State v. Johnson, 31 N.J. 489, 510 (1960); State v. Bogen, 13 N.J. 137, 140-141 (1953). During his summation the prosecutor made the following remarks:
Farrell knew that Lutz had something to testify about. Farrell knows it today and remember what he tried to do with the young kid when he was on the stand yesterday? While he was on the stand yesterday, did you look in the back of the court room and see those characters seated right in the back trying to intimidate that kid during his entire testimony. If they were interested in the case, and only one of them testified, where are they today. There is no Harold William Lutz here today to intimidate, but there was yesterday. Those four characters sat there during the whole trial and during Mr. Lutz' entire testimony and stared him down and intimidated him. If Mr. Lutz seemed scared, I think we can all understand why he was scared. (Emphasis added.)
Other than this statement there was nothing in the record to indicate that the four men even existed.*fn1 These comments were the equivalent of testimony by the prosecutor that the defendant had procured the presence of these men for the
purpose of intimidating a State witness and therefore was a party in an attempt to obstruct justice. They also had the tendency to enhance Lutz's believability in that he testified despite a foreboding atmosphere.
It is also error to permit the prosecutor to declare his personal belief of a defendant's guilt in such a manner that the jury may understand that belief to be based upon something which the prosecutor knows outside the evidence. State v. Thornton, 38 N.J. 380, 398 (1962). The prosecutor included the following in his summation:
Ladies and gentlemen of the jury, a lot of times during this case you have heard objections and I have seemed over zealous. Please do not hold that against me because I have a strong feeling about this case. There is no question in my mind as to what happened on that night, and I have the responsibility, not only to myself, but to my office and to each and every one of you seated in this jury and to each and every person that resides in this county and to each and every person that lives in this state; because, a brutal crime was committed on that date and there is no question in my mind that Mr. Farrell had something to do with that crime. So, if I have seemed to be over zealous, please don't hold that against me because as I have said, I feet very strongly about this case. If I seem youthful, please don't hold that against me. Please don't feel that I have no experience with people because although I may be youthful, during my tenure as assistant prosecutor, I have had an opportunity to try many, many cases. I have tried at least fifty cases, not counting those that ended up in a plea, and I have seen many, many people and I can say now, that I don't think I have ever felt stronger about a case than I do about this one.
Now, ladies and gentlemen of the jury, that's why I say to you that I feel about this case like I have never felt before. There are very few cases where I have felt like I feel now. I want to see justice done and I want to see this man convicted of a crime that he committed . . . . (Emphasis added.)
We are convinced such comments tended to create the impression that aside from the evidence presented to the jury, the prosecutor had personal knowledge of the defendant's guilt. We are not discussing a situation where the prosecutor argues that the jury should be persuaded that ...