On certification to the Superior Court, Appellate Division, whose opinion is reported at 364 N.J. Super. 357 (2003) .
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The issue before the Court is whether it was proper for the prosecutor to suggestion, during summation, that defendant, Ahmad Daniels, tailored his testimony to meet the facts testified to by other witnesses.
On a morning in September 2001, Paulette Lenez was walking to the post office in Bloomfield, New Jersey. She was followed by a man jogging alongside a slowly moving SUV. When he was within arm's reach, the jogger grabbed Lenez's purse and, after a brief struggle, retreated to the passenger side of the SUV with the purse. Lenez chased the purse-snatcher and prevented him from shutting the car door. The jogger pushed Lenez back and the SUV sped away. An eyewitness testified to seeing Lenez hanging on the vehicle with two men inside.
Police obtained a description of the SUV that was later spotted by Officer Bromley of the East Orange Police. Officer Bromley testified that when he first observed the vehicle, there were two passengers but that when he finally stopped the SUV, only Daniels was in the vehicle. When Officer Bromley asked Daniels where the other passenger was, Daniels did not respond. Daniels was arrested. Shortly thereafter, Lenez identified the vehicle and her purse, which was wedged between the seat and the door of the SUV.
Daniels was charged with second-degree robbery and third-degree receiving stolen property. At trial, testimony revealed that there was uncertainty about whether Daniels was involved in the theft. Lenez testified that Daniels was not the person who stole her purse but could not say that he was the driver of the SUV because she did not clearly see the driver's face. One witness did identify Daniels as the driver of the SUV during the purse snatching. Daniels testified on his own behalf, denying any involvement in the purse snatching. Daniels claimed a friend, "Mumbles," came by his home and asked him to drive Mumbles' car. Daniels said he did not see the purse but that Mumbles was fumbling in between the passenger seat and the door. Daniels further testified that as soon as they reached their final destination, Mumbles jumped from the car and ran away. Daniels said he first noticed the presence of police officers when he turned the car engine off.
During summation, the prosecutor commented that Daniels sat in court listening to the entire case and all testimony. He was able to learn the facts that he could not get around and had the opportunity to craft his version of the facts to comport with that testimony. Defense counsel did not object to these comments.
At the close of trial, the court instructed the jury on the case law and the juror's role in assessing credibility. The jury convicted Daniels of robbery but acquitted him of receiving stolen property. The trial court imposed a five-year sentence, subject to the No Early Release Act.
The Appellate Division affirmed on appeal, finding that the prosecutor's comments did not meet the standard for reversible error because the comments were directed at Daniels' credibility as a witness.
The Supreme Court granted certification.
HELD: The prosecutor's comments on summation were unfairly prejudicial to Daniels. Failure by the trial court to give an adequate curative instruction was plain error.
1. The Appellate Division relied on Portuondo v. Agard. In that case, a majority of the United States Supreme Court held that the Federal Constitution does not proscribe a prosecutorial comment concerning a testifying defendant's opportunity to tailor his testimony to that of other witnesses. Justice Ginsburg dissented, advocating a restrained and moderate approach that would permit a prosecutor to argue, during summation, that the defendant tailored his testimony only if there was evidence that supported that contention. Both the majority and the concurrence invited other courts to decide the wisdom of permitting comments on a defendant's opportunity to tailor. (Pp. 7-13)
2. The Appellate Division and other state courts have wrestled with the Portuondo decision. With that decisional law as a background, the Court addresses the propriety of the prosecutorial comments here. Because defense counsel did not object at trial, any alleged errors are reviewed under the plain-error standard. Under that standard, the error is disregarded unless it is clearly capable of producing an unjust result. In its review, the Court at times must exercise its supervisory authority over criminal trial practice in order to curb government actions that are repugnant to the fairness and impartiality of trials, including alleged improper prosecutorial comments. Not every improper prosecutorial comment will warrant a new trial; a reviewing court may reverse only if the comments are so egregious that the defendant was deprived of a fair trial. (Pp. 13-20)
3. A criminal defendant who testifies is not just another witness. He or she possesses fundamental rights that are essential to a fair trial. Prosecutorial comments suggesting that defendant tailored his testimony inverts those rights, permitting the prosecutor to punish defendant for exercising that which the Constitution guarantees. Despite Portuondo, the Court finds that such comments undermine the core principle of our criminal justice system - that the defendants receive a fair trial. (Pp. 20-22)
4. There are two categories of prosecutorial accusations of tailoring: generic and specific. Generic accusations occur when the prosecutor attacks the credibility of a defendant by drawing the jury's attention to defendant's presence at trial and the attendant opportunity to tailor his testimony, despite the lack of any evidence that defendant has tailored his testimony. Allegations of tailoring are specific when there is evidence in the record, which the prosecutor can identify, that supports an inference of tailoring. Because the Court cannot conclude that generic accusations are a legitimate means to bring out a just conviction, pursuant to its supervisory authority, the Court holds that prosecutors are prohibited from making generic accusations of tailoring during summation. (Pp. 22-23)
5. If there is specific evidence of tailoring, a prosecutor may comment in limited fashion. Those comments must be based on the evidence in the record and the reasonable inferences drawn therefrom. Nonetheless, the prosecutor may not refer explicitly to the fact that the defendant was in the courtroom or that the defendant heard the testimony of other witnesses and was, therefore, able to tailor his testimony. (P. 23)
6. Although not raised before this Court, for future guidance, this same analysis applies to cross-examination. The prosecutor must have reasonable grounds for posing questions during cross-examination that impugn a witness's credibility. If there is evidence in the record that defendant tailored his testimony, the prosecutor may cross-examine the defendant based on that evidence. At no time during cross-examination, however, may the prosecutor reference the defendant's presence at trial or his ability to hear the testimony of preceding witnesses. (Pp. 23-24)
7. Applying the framework just established, the Court concludes that the prosecutor's summation here was improper. The trial court's charge did not cure the harmful effects of the prosecutor's comments. Failure to give an adequate curative instruction was plain error. (Pp. 25-28)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED for a new trial consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE ZAZALLI'S opinion.
The opinion of the court was delivered by: Justice Zazzali
Argued September 14, 2004
At defendant's trial, the prosecutor suggested during summation that defendant tailored his testimony to meet the facts testified to by other witnesses. Although defense counsel did not object to the summation, defendant now argues that the comments violated his constitutional rights. The State responds that the United States Supreme Court has held that remarks similar to those at issue in this appeal are constitutional.
The Appellate Division upheld the conviction. Because we conclude that the prosecutor's comments were improper, we now reverse defendant's conviction and remand for a new trial.
A grand jury charged defendant with second-degree robbery, in violation of N.J.S.A. 2C:15-1, and third-degree receiving stolen property, in violation of N.J.S.A. 2C:20-7. Defendant was tried before a jury. The following facts, which provide context for the prosecutor's summation, were adduced at trial.
On a September morning in 2001, Paulette Lenez was walking to the post office in Bloomfield, New Jersey. Lenez was followed by a man jogging alongside a slowly-moving SUV. When he was within arm's reach, the jogger snatched Lenez's purse from behind. After a brief struggle, the jogger retreated to the passenger side of the SUV with the purse. Lenez chased him and prevented him from shutting the door. The jogger pushed her back, and the vehicle sped away. An eyewitness testified that she heard a woman screaming, that she saw Lenez "hanging on to a white SUV," and that two men were in the vehicle.
Bloomfield Detective Edward Sousa arrived at the scene and found Lenez "upset and crying." Sousa spoke with witnesses, obtained a description of the vehicle involved in the incident, and sent the description over the State Police Emergency Network. East Orange Police Officer Eric Bromley spotted the SUV and followed it with his lights activated. He testified that when he first observed the SUV, there were two passengers, but when it finally stopped, only defendant was in the vehicle. When Officer Bromley asked where the other passenger was, defendant did not respond. The officer then arrested defendant.
Shortly thereafter, Lenez identified the vehicle and her purse, which was wedged between the seat and the door of the SUV. She also indicated which items were missing from the purse. Testimony at trial revealed uncertainty over whether defendant was actually involved in the theft. Lenez testified that defendant was not the person who stole her purse. She was unsure whether defendant was the SUV's driver because she never clearly saw the driver's face. Lenez did, however, identify defendant in court as the person that Officer Bromley arrested. One witness identified defendant as the driver of the SUV during the purse-snatching, but another witness testified that she did not see the driver during the incident.
Defendant testified on his own behalf and denied being involved in taking Lenez's purse. He said that he was getting ready for work at his mother's house when "Mumbles," a "mutual friend" of defendant and his cousin, honked a car horn outside. Mumbles then asked defendant to drive the car, and defendant agreed. Defendant testified that he "intended to drive [himself] to work," but that Mumbles directed him to take a different route. Defendant said he did not see the purse described by Lenez in the car, but that Mumbles was "fumbling... [i]n between the passenger seat and the door."
Defendant testified that they soon arrived at their final destination, a parking lot in East Orange. Mumbles jumped out of the car without saying anything to defendant. Defendant asked Mumbles where he was going, but Mumbles did not answer. Mumbles ran past the back of the SUV and hopped a fence. Defendant stated that he first noticed the presence of police officers when he turned the engine off. The officers approached defendant with their guns drawn, told him to "freeze," and arrested him.
During summation the prosecutor made the following comments:
Now, I said that the defendant in his testimony is subject to the same kinds of scrutiny as the State's witnesses. But just keep in mind, there is something obvious to you, I'm just restating something you already know, which is all I do in my summation, the defendant sits with counsel, listens to the entire case and he listens to each one of the State's witness[es], he knows what facts he can't get past. The fact that he was in the SUV. The fact that there's a ...