On appeal from the Superior Court, Law Division, Atlantic County.
(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).
RIVERA-SOTO, J., writing for the Court.
Brian Wakefield pled guilty to two counts of capital murder. In this appeal, Wakefield raises fourteen assignments of error in respect of the penalty phase trial that resulted in his death sentence.
Wakefield made no factual representations at the plea hearing other than to admit his guilt of the crimes charged. The following summary of facts was tendered, however, by the prosecutor at the plea hearing.
On January 18, 2001, Pleasantville Police Department responded to a house fire in Pleasantville and discovered fires in different locations of the house. A number of the bedrooms had been ransacked. After extinguishing the fires, police discovered two bodies under debris in the basement. The bodies were burnt beyond recognition. Based on dental records, police were able to confirm that the victims were Shirley and Richard Hazard. Police also discovered a number of bottles of alcohol and cooking oils that could be used as accelerants for the fire. The medical examiner was able to determine that both Mr. and Mrs. Hazard died of sharp blunt force injuries. The fire was not the cause of death. Through relatives, it was also determined that Mrs. Hazard's car, a Lincoln Continental, was missing. The Lincoln was later found on Route 322 near the Hamilton Mall.
That same evening, Olin Caldwell, a cab driver, walked into the Pleasantville Police Department and reported suspicious conduct on the part of someone he had given a ride to that day who he knew as B-Love. B-Love was determined to be Wakefield. Caldwell reported that he picked up Wakefield near the Hamilton Mall. Wakefield had a bag of new clothes with him, and asked Caldwell to rent him rooms at a nearby Atlantic City casino hotel. Caldwell rented three rooms for Wakefield. When they got to the casino hotel, Wakefield changed from the clothes he was wearing into the clothes he had purchased at the Mall. Caldwell brought the clothes and some other property that Wakefield left in his cab to the Police Department. Included was a piece of jewelry later determined to belong to Mrs. Hazard. The clothes that were turned over by Caldwell were later submitted for DNA analysis. They were found to contain blood stains consistent with that of Mr. and Mrs. Hazard.
Police got a search warrant and arrested Wakefield on the morning of January 19th at the casino hotel. Wakefield gave two taped statements that day. In his first statement, he admitted to being involved in the crimes, but denied injuring the Hazards. He claimed that he acted as a lookout for someone who he knew as Hype G (Gary Clemmons). In his second statement, Wakefield acknowledged that he stabbed Mr. Hazard in the right side and that he threw Mrs. Hazard down the basement steps and repeatedly kicked her in the ribs. Independent witnesses placed Mr. Clemmons at a different location at the approximate time of the homicides, so it was the State's position that Wakefield committed the crimes by his own conduct.
On April 11, 2001, an Atlantic County grand jury returned a thirteen-count indictment charging Wakefield with two counts of knowing or purposeful murder and numerous other charges. The State served a notice of aggravating factors as a prerequisite for the imposition of the death penalty. As to Mr. Hazard, the aggravating factors were that the murder was committed while Wakefield was engaged in robbery and/or burglary, and that it was committed for the purpose of escaping detection. As to Mrs. Hazard, the aggravating factors were that the murder was committed while Wakefield was engaged in murder (Mr. Hazard's), robbery and/or burglary, and it was committed for the purpose of escaping detection.
On September 8, 2003, Wakefield entered an unconditional plea of guilty on all counts of the indictment. The jury was sworn on February 2, 2004, and the penalty phase trial started two days later. The jury unanimously determined beyond a reasonable doubt that the aggravating factors proven outweighed all of the mitigating factors presented. Among the seventeen mitigating factors pled by Wakefield were that he did not plan the murders; that he was raised in an environment where domestic violence, substance abuse and criminal activity were pervasive; and that he was raised in a home without structure or positive role models. Wakefield moved to set aside the death verdict, alleging prosecutorial misconduct in summation and that the verdict was against the weight of the evidence. The trial court denied those post-trial applications and sentenced Wakefield on the non-capital crimes to an aggregate sentence of fifty-five years, with an aggregate minimum term of imprisonment of thirty-four years.
Wakefield filed a direct appeal to this Court. The Association of Criminal Defense Lawyers of New Jersey was granted leave to appear as amicus curiae.
HELD: Wakefield's penalty phase proceedings were fair, the death sentence was properly imposed, and his death sentence is not disproportionate.
1. Wakefield claims that the State was permitted to introduce vast amounts of highly inflammatory evidence. This evidence falls into four distinct categories: portions of his statements to the police; evidence in respect of the crimes themselves; photographs of the crime scene; and evidence of Wakefield's post-crime behavior. Underlying these claims is Wakefield's contention that his unconditional guilty plea obviated any need for the State to present such evidence. This Court recently reaffirmed the principle that the only evidence admissible in the penalty phase is evidence relevant to the aggravating and mitigating factors. The Court finds Wakefield's statements relevant to prove whether the murders were purposeful, the aggravating factor of escaping detection, and whether the mitigating factors were proven. In addition, the probative value of this evidence was not substantially outweighed by the risk of undue prejudice. (pp. 14-20)
2. Wakefield also challenges the proofs of the crimes themselves tendered by the prosecution, arguing that the fact that he pled guilty removed any need for such evidence. The Court concludes that Wakefield's admission of guilt did not provide him the advantage of barring proofs of the crimes themselves. The evidence challenged by Wakefield was relevant and its probative value was not substantially outweighed by any undue prejudice. (pp. 20-28)
3. Wakefield next alleges that there was prosecutorial misconduct throughout the penalty phase trial. To justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced Wakefield's fundamental right to have a jury fairly evaluate the merits of his defense. Wakefield alleges that in his opening the prosecutor engaged in prohibited vouching by claiming that the State does not routinely seek the death penalty, and requests it only when the State believes it is called for. The trial court immediately issued a curative instruction explaining to the jury that the prosecutor's belief or opinion is not evidence and was not proper argument, and should be disregarded by the jury. Even if the prosecutor's comments could be termed questionable, the potential prejudicial effect on Wakefield's right to a fair trial was slight and the relief requested is unwarranted. Wakefield points to instances during the prosecution's opening statement that he claims constituted improper argument. The Court finds the comments to be a recital of the aggravating factors the State intended to prove and also a response to the implausibility of the excuses Wakefield tendered in his various statements. (pp. 28-39)
4. Wakefield alleges that, at several points during the evidentiary stage of the penalty phase trial, the State disparaged defense counsel by accusing him of discovery violations. The Court does not read these comments as an assault on defense counsel. On the contrary, the prosecution properly sought to raise credibility issues concerning recent fabrication or bias. Next, Wakefield claims that the State engaged in unwarranted comments and accusations -- cheap shots - that distorted the record and prejudiced Wakefield. Most of these comments arose in cross-examination, and, with one exception, were a proper attempt to impeach these witnesses. As to the exception, the cross-examination of the defense's social worker, the Court finds the prosecutor's comment is worthy of disapproval, but was not so egregious as to deprive Wakefield of a fair trial. (pp. 39-59)
5. Wakefield also raises objections to the State's summation, including the prosecutor's reference to the death penalty as "justice," and his statement that it is what Wakefield "deserved." In addition, he complains that the prosecutor improperly focused on Wakefield's character when his character was a "non-issue." The Court finds that the vast majority of these comments were fair responses to Wakefield's presentation of evidence. Moreover, none of the comments substantially prejudiced Wakefield's fundamental right to a fair trial. (pp. 59-78)
6. Wakefield complains that the trial court's instructions on the reasonable doubt standard were in error and require a new penalty phase trial. Defense counsel did not raise an objection to the instructions, and the Court concludes that the trial court's charge as a whole in no way lessened the State's burden of proof. The Court also rejects, at it has in prior cases, Wakefield's argument that the jury instructions should include a statement that he is entitled to a presumption against the death penalty. In addition, the Court finds no error in the State's use of victim impact statements. (pp. 78-103)
7. The Court rejects Wakefield's other challenges to his penalty phase proceedings and his constitutional challenges to the escape detection aggravating factor and to the death penalty generally. (pp. 103-122)
8. On proportionality review, the Court concludes that Wakefield's sentence is not disproportionate. Reviewing the available statistical data under frequency analysis, the Court concludes that Wakefield has failed to establish that his death sentence is disproportionate. Under precedent seeking analysis, the Court finds that Wakefield has a high level of culpability, especially given the age and vulnerability of his victims, his extensive prior record, and his lack of remorse. Comparing Wakefield's sentence to that of defendants in other, similar cases involving multiple homicides, the Court finds that Wakefield's death sentence is not irrational or aberrant. (pp. 122-171)
The judgment of conviction and sentence, including Wakefield's death sentence, are AFFIRMED.
JUSTICE ALBIN has filed a separate, CONCURRING opinion, to express the view that the prosecutor's opening remarks vouching for the credibility of the State's case for death exceeded the bounds of propriety, even if they do not warrant a reversal of Wakefield's death sentence. He also believes that the present system of proportionality review has become overly complex and defies understanding, and because that system is incapable of ensuring consistency and uniformity in sentencing, the Court should endeavor, as it always has, to prevent an aberrational sentence.
JUSTICE LONG has filed a separate, DISSENTING opinion, expressing the view that Wakefield's sentence is disproportionate compared to the life sentences received by other multiple-homicide defendants who had the same or greater level of culpability.
JUSTICE WALLACE has filed a separate, DISSENTING opinion, in which JUSTICE LONG joins, expressing the view that the cumulative effect of the numerous errors below deprived Wakefield of his right to a fair trial.
JUSTICES LaVECCHIA and ZAZZALI join in JUSTICE RIVERA-SOTO's opinion. JUSTICE ALBIN filed a separate, concurring opinion. JUSTICES LONG and WALLACE have filed separate, dissenting opinions.
The opinion of the court was delivered by: Justice Rivera-soto
Defendant Brian Wakefield pled guilty to two counts of capital murder and eleven other offenses arising out of the home-invasion robbery, assault, and murder of seventy-year-old Richard Hazard and his sixty-four-year-old wife Shirley Hazard in their Pleasantville, New Jersey home on January 18, 2001. At his penalty phase trial, a jury unanimously found all of the aggravating factors alleged by the State; rejected, in whole or in part, all of the mitigating factors claimed by defendant; determined beyond a reasonable doubt that the aggravating factors outweighed the mitigating factors; and sentenced defendant to death. The trial court later separately sentenced defendant on all of the non-capital crimes to which he pled guilty.
In this direct appeal, defendant raises fourteen assignments of error in respect of the penalty phase trial that resulted in his death sentence.*fn1 We hold that defendant's objections to his death sentence are without merit and, therefore, we affirm his convictions and sentences.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant made no factual representations at the plea hearing other than to admit his guilt of the crimes charged. A succinct summary of facts was tendered, however, by the prosecutor in lieu of defendant's allocution at the plea hearing:*fn2
[O]n January 18th of 2001, [the] Pleasantville Police Department responded to 300 Wellington Avenue in Pleasantville. Upon entering the house which they found unlocked, they encountered fires in different locations. There were two fires that they found on the first floor, [and] one fire that they found . . . upstairs.
As they were going through the upstairs, they found that a number of the bedrooms had been ransacked[,] that dresser drawers were pulled from the dressers[,] and the contents were emptied on the floor. After extinguishing the fires on the first and second floor[s], they discovered there was some additional fire in the basement.
Upon extinguishing the fires in the basement, they discovered two bodies under debris. These bodies were burnt beyond recognition, but due to dental records, they were able to confirm that it was Shirley and Richard Hazard.
Mr. Hazard was observed by the police and firemen with visible wounds to his head. There [were] puddles of blood around his head. He also had a melted garbage bag on the top part of his head. [T]he arson investigator was later able to determine that there were five fires set within the house, one in the upstairs, two on the first floor, [and] two in the basement. One of the areas of fire [was] the actual bodies of Mr. and Mrs. Hazard. The police also found that there were a number of alcohol bottles and cooking oils that were spilled on the floor that . . . could be used as accelerants for the fire.
[The] medical examiner was able to determine that both Mr. and Mrs. Hazard died of sharp and blunt force injuries. It was determined that the fire was not the cause of death, that the fire was post-mortem. It was also determined that through relatives while [the] police and fire [personnel were] still on the scene that a car was missing, a car Mrs. Hazard drove: a 1994 Lincoln Continental.
About 7:20 p.m. the Lincoln Continental was found on Route 322 near Hamilton Mall in Hamilton Township. About 11:30 [p.m.] on that same date: the 18th, a cab driver[,] Olin Caldwell[,] walked into the Pleasantville Police Department, [and] indicated that on that day he had given a ride to somebody he knew as B-Love. B-Love was determined to be [defendant]. When [Caldwell] picked up [defendant], [defendant] had a bag of new clothes with him. [Defendant] later asked for Mr. Caldwell to rent him rooms at [a nearby Atlantic City casino hotel]. Mr. Caldwell agreed to do that. He rented the defendant three rooms at the [casino hotel]. When the defendant and Mr. Caldwell got to the [casino hotel], the defendant changed from the clothes that he was wearing into the clothes he had just purchased at the mall. He also made some purchases within the City [of Atlantic City]. Mr. Caldwell also observed [defendant] cashing in some old coins at a coin redemption center with the casino. Mr. Caldwell was suspicious of the defendant's behavior and later brought the clothes and some other property that [defendant] left in his cab to the Pleasantville Police Department[.] [T]he clothes included the jeans, two pairs of shoes, [and a] sweat-shirt. The jewelry included a pendant that said "number one grandmom." This pendant was later identified as belonging to Mrs. Hazard. Mr. Cladwell told the police that [defendant] was still at the [casino hotel].
The police ended up getting a search warrant and arresting [defendant at] approximately 6:13 a.m. in the morning of January 19th 2001. [Defendant] on that day of the 19th gave two taped statements to the police[,] and gave a taped statement on January 21st [in] the County Jail to the police. In his first statement [defendant] acknowledged being involved in the crimes, but denied committing any injuries to Mr. and Mrs. Hazard. [Defendant] indicated he met an individual he knew as Hype G also known as Gary Clemmons at the Woodlands in Pleasantville on that day. Mr. Clemmons asked [defendant] to be a lookout. [Defendant] indicated that he went to the [Hazard] residence. [Defendant] stayed about four houses down across the street as Mr. Clemmons went inside. He saw a person later determined to be Mr. Hazard open up the door as Mr. Clemmons entered.
In this first statement [defendant] denied being involved in the actual assault on the victims, but he did acknowledge that he did assist in setting fires in a second statement, though he did acknowledge that he stabbed Mr. Hazard in the right side[,] which is consistent with an injury found by the medical examiner. [Defendant] did acknowledge that he threw Mrs. Hazard down [the] basement steps and repeatedly kicked her in the ribs. The injuries to the ribs are corroborated by the medical examiner's office. [Defendant] also acknowledged in the statement pouring gasoline on Mr. Hazard and lighting him on fire postmortem. The [third] statement basically acknowledges the same type of information regarding being involved in inflicting injuries to Mr. and Mrs. Hazard.
[T]he clothes that were turned over by Mr. Caldwell to the police department later was submitted for DNA analysis. In addition . . . [defendant] did acknowledge that these were the clothes he was wearing during the course of the crime to the police. And those clothes [showed] Shirley Hazard's blood on the left sneaker, Richard Hazard's blood on a jean, and Mr. Hazard's blood on the right sneaker. The odds [of a DNA comparative match] are in the billions [to one] on one and in [the] trillions [to one] on the other.
[Defendant] did indicate that Mr. Clemmons was involved in these homicides. It turns out through independent witnesses that Mr. Clemmons was picking up his children from daycare at the approximate time of the homicides. So it's the State's position it was physically impossible for [Clemmons] to be involved in the crimes and, therefore, the defendant committed these crimes by his own conduct.
In sum, then, it is undisputed that defendant entered the Hazard home; he assaulted and killed Richard Hazard; he placed Richard Hazard's body in the basement and covered his head with a plastic garbage bag; when Shirley Hazard returned home from grocery shopping, defendant assaulted her and flung her down the basement steps; once in the basement, defendant further assaulted and killed Shirley Hazard; defendant ransacked the Hazard home for money and jewelry; in order to disguise his crimes, defendant set fire to the bodies and to several other places in the Hazard home; defendant stole Shirley Hazard's car; defendant went on a shopping and partying spree with the proceeds of his crimes; defendant was arrested the following morning; defendant confessed to his crimes; independent testimony, and physical and forensic evidence tied defendant to these crimes; and defendant admitted his guilt under oath.
Based on those facts, on April 11, 2001, the Atlantic County grand jury returned a thirteen-count indictment charging defendant with two counts of knowing or purposeful murder by one's own conduct, in violation of N.J.S.A. 2C:11-3a(1) or (2); two counts of knowing or purposeful murder, in violation of N.J.S.A. 2C:11-3a(1) or (2); two counts of felony murder, in violation of N.J.S.A. 2C:11-3a(3); two counts of first-degree robbery, in violation of N.J.S.A. 2C:15-1; one count of second degree burglary, in violation of N.J.S.A. 2C:18-2; one count of second-degree aggravated arson, in violation of N.J.S.A. 2C:17-1a; one count of third-degree possession of a knife with the purpose to use it unlawfully against the person or property of another, in violation of N.J.S.A. 2C:39-4d; one count of third-degree hindering apprehension or prosecution, in violation of N.J.S.A. 2C:29-3b(1); and one count of fourth-degree knowingly possessing a knife under circumstances not manifestly appropriate for such lawful uses as it may have, in violation of N.J.S.A. 2C:39-5d.
Because the indictment included charges of knowing or purposeful murder by one's own conduct that might implicate the imposition of the death penalty, N.J.S.A. 2C:11-3c, at defendant's arraignment the State served a notice of aggravating factors as a prerequisite for the imposition of the death penalty. See N.J.S.A. 2C:11-3c(2)(e) ("Prior to the commencement of the sentencing proceeding, or at such time as he has knowledge of the existence of an aggravating factor, the prosecuting attorney shall give notice to the defendant of the aggravating factors which he intends to prove in the proceeding."). The State alleged two aggravating factors in respect of the murder of Richard Hazard: that his murder was committed while defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery and/or burglary, as provided in N.J.S.A. 2C:11-3c(4)(g); and that his murder was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense, as provided in N.J.S.A. 2C:11-3c(4)(f). Because Richard Hazard was murdered before his wife Shirley Hazard, the two aggravating factors in respect of the murder of Shirley Hazard alleged by the State differed slightly from those alleged in respect of her husband: that her murder was committed while defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit murder, robbery and/or burglary, as provided in N.J.S.A. 2C:11-3c(4)(g); and that her murder was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense, as provided in N.J.S.A. 2C:11-3c(4)(f).
On September 8, 2003, defendant entered an unconditional plea of guilty on all counts of the indictment. Jury selection for defendant's penalty phase trial commenced immediately following defendant's guilty pleas, and continued for over twenty-seven non-consecutive trial days thereafter, ultimately concluding on January 22, 2004. The jury was sworn on February 2, 2004, and the penalty phase trial started. Two days later, on February 4, 2004, and in response to State v. Fortin (II), 178 N.J. 540 (2004), which had been decided the prior day, defendant moved to dismiss the aggravating factors listed by the State, principally claiming that the State's failure to present the aggravating factors to the grand jury, and the grand jury's failure to consider the same, violated his constitutional rights.*fn3 Based on Fortin's conclusion in respect of its prospective application, the trial court denied defendant's application, as well as defendant's motion for a stay of that determination pending an interlocutory appeal. That same day, defendant sought, and the Appellate Division granted, an emergent motion for a temporary stay pending his interlocutory appeal. Two days later, on February 6, 2004, and because jury selection had been completed, the jury had been sworn, and the taking of evidence had commenced, this Court denied defendant's motion for leave to appeal and dismissed defendant's motion for a stay pending appeal as moot, referencing the order of clarification issued that day in Fortin: "In any case in which the penalty phase of a capital case had begun before the issuance of the Fortin opinion, including any case in which the trial court had begun empanelling a jury, there is no requirement that the State present the aggravating factors to a Grand Jury." Id. at 656.
Defendant's penalty phase trial resumed on February 9, 2004 and continued until the late morning of March 4, 2004 when, after fifteen days of evidence and jury deliberations spanning the afternoon of March 3, 2004 and the morning of March 4, 2004, the jury unanimously determined beyond a reasonable doubt that the aggravating factors proven outweighed all of the mitigating factors presented. See N.J.S.A. 2C:11-3c(3)(a). As a result, the jury returned separate death sentences as to the murders of Richard and Shirley Hazard.
Specifically, the jury was unanimous in its separate findings concerning each of the aggravating factors: that the murder of Richard Hazard was committed while defendant was engaged in the commission of a burglary; that the murder of Richard Hazard was committed while defendant was engaged in the commission of a robbery; that the murder of Richard Hazard was committed for the purpose of escaping detection, apprehension, trial, punishment, or confinement, or another offense committed by defendant; that the murder of Shirley Hazard was committed while defendant was engaged in the commission of a burglary; that the murder of Shirley Hazard was committed while defendant was engaged in the commission of a robbery; that the murder of Shirley Hazard was committed while defendant was engaged in the commission of the purposeful and/or knowing murder of Richard Hazard; and that the murder of Shirley Hazard was committed for the purpose of escaping detection, apprehension, trial, punishment, or confinement, or another offense committed by defendant.
The jury's consideration and rejection of the seventeen mitigating factors pled by defendant is set forth in the following chart:
Age of defendant at the time of the murders 0/12
That defendant did not plan or premeditate the murders 7/5
The defendant has pleaded guilty and accepted responsibility for his Conduct 0/12
That defendant is remorseful for his participation in the crime 0/12
That defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution 0/12
That defendant's capacity to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of the law was significantly impaired as a result of mental disease or defect or intoxication, but not to a degree sufficient to constitute a defense to prosecution 0/12
That defendant was subject to emotional and physical neglect at the hands of his family 3/9
That defendant was subject to extended physical abuse at the hands of his family 1/11
That defendant was raised in an environment where domestic violence, substance abuse and criminal activity were pervasive 7/5
That defendant began abusing drugs and alcohol at a young age as a means of self-medication in an effort to escape from a history of neglect and abuse 0/12
That defendant was raised in a home without structure, boundaries or positive role models which he could emulate 6/6
That defendant was under the influence of mental or emotional disturbance insufficient to constitute a defense to prosecution 0/12
That defendant's capacity to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication, but not to a degree sufficient to constitute a defense to prosecution 0/12
That defendant suffers from neurological dysfunction 3/9
That defendant suffered from traumatic brain and head injuries he sustained as a child 0/12
That the State agencies responsible for protecting children from parental abuse and/or neglect did not succeed in protecting defendant 1/11
Any other matter or circumstance one or more jurors has identified as a mitigating factor 0/12
The trial court individually polled each juror, and each juror responded that he or she was satisfied beyond a reasonable doubt that the aggravating factors proven outweighed all of the mitigating factors, and that his or her vote was accurately reflected on the verdict form. Neither counsel for the State nor for defendant requested any additional polling of the jury.
After the jury was excused, and as required by law, N.J.S.A. 2C:11-3c(3)(a), the trial court sentenced defendant to death. Defendant moved to set aside the death verdict, alleging prosecutorial misconduct in summation and that the verdict was against the weight of the evidence. The trial court denied those post-trial applications and sentenced defendant on the non-capital crimes to which defendant had pled guilty. Finding there were no mitigating factors applicable and that there were "a number of very weighty aggravating factors to be taken into account[,]" see generally N.J.S.A. 2C:44-1a and b (enumerating aggravating and mitigating factors relevant to non-capital sentencing determinations), the trial court sentenced defendant to an aggregate maximum term of imprisonment of fifty-five years, an aggregate minimum term of imprisonment of thirty-four years, an aggregate mandatory ten-year parole term, and the payment of several statutorily defined penalties and assessments.
As provided by N.J.S.A. 2C:11-3e and Rule 2:-1(a)(3), defendant filed a direct appeal of his death sentence to this Court. We granted leave to the Association of Criminal Defense Lawyers of New Jersey to appear as amicus curiae.
II. INFLAMMATORY EVIDENCE
Defendant claims that his death sentence cannot be sustained because "the State was permitted to introduce vast amounts of highly inflammatory evidence that was unnecessary for either proof of the alleged aggravating factors or refutation of claimed mitigating factors." Defendant's allegations of "highly inflammatory evidence" fall into four distinct categories: portions of defendant's statements to the police; evidence in respect of the crimes themselves; photographs of the crime scene; and evidence of defendant's post-crime behavior. Underlying these claims is defendant's contention that his unconditional guilty plea to all of the crimes for which he stood charged obviated any need for the State to prove any of those facts. As a result, defendant contends that his guilty pleas entitled him to the added benefit of limiting the State's proofs in the penalty phase trial exclusively to a sanitized version of the enumerated aggravating factors.
The State disagrees. According to the State, the proper standard for admissibility of evidence in a death penalty phase trial is whether the evidence is relevant to the aggravating and mitigating factors. The State contends that all proofs presented in respect of penalty were relevant to the aggravating and mitigating factors before the penalty phase jury and, therefore, were admissible.
In State v. Josephs, 174 N.J. 44, 116 (2002), we "reaffirm[ed] the principle that the only evidence admissible in the penalty phase is evidence relevant to the aggravating and mitigating factors." Earlier that same Term, we explained that
In general, a trial court is afforded considerable latitude regarding the admission of evidence, and is to be reversed only if the court abused its discretion. In a capital sentencing trial, admissible evidence includes that evidence relating to the aggravating and mitigating factors at issue. In assessing the probative value and the risk of undue prejudice under N.J.R.E. 403, the trial court has discretion to make appropriate determinations and will be reversed only if the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.
[State v. Nelson, 173 N.J. 417, 470 (2002) (citations and internal quotation marks omitted).]
It is against that standard of admissibility that defendant's claims must be gauged.
1. Defendant's Statements to the Police
Defendant alleges that six specific portions of his statements to the police should have been withheld from his death penalty jury. These are: (1) defendant's unprompted description that, after hitting Shirley Hazard in the head with a blunt object, stabbing her repeatedly, and throwing her down the basement steps, defendant kicked her several times in the ribs with a force akin to that applied by a professional football place kicker; (2) defendant's explanation that, when accosted by the Hazards' dog, defendant beat the dog into submission using an oversized wooden spoon in order to quiet him; (3) defendant's statement that, after the crimes, he was hungry so he drove in Shirley Hazard's car to a local fast-food restaurant for a meal; (4) defendant's description of his post-crime shopping spree with the proceeds stolen from the Hazards; (5) defendant's description of how, after the shopping spree, he rented several rooms at an Atlantic City casino hotel for a party; and, (6) defendant's statement that, during that party, he had sex with "three or four girls."
The trial court, in its instructions to the jury, addressed defendant's concerns:
It's important for me to here note that although there are guilty pleas to these offenses, guilty pleas in and of themselves are insufficient to prove any aggravating factor. They are insufficient in and of themselves and there must be other evidence to establish it.
During the State's presentation to you in its opening remarks, the State discussed [defendant's] alleged conduct after the commission of the crimes.
[The prosecution] argued that [defendant] celebrated after the crimes, threw a party, ate at [a fast-food restaurant] and there was other conduct described. This alleged conduct is not an aggravating factor and, accordingly, this conduct cannot be used by you to determine if the death penalty is appropriate in this case. While evidence of [defendant's] spending can be used by you, if you feel it is credible evidence that a robbery occurred and that [defendant] obtained proceeds from that robbery, his alleged conduct cannot be used for any other purpose.
You're specifically instructed that you cannot consider his spending as evidence that [defendant] is a bad person and, thus, more worthy of the death penalty.
To repeat, it is only the aggravating factors alleged by the State that can be considered to determine whether [defendant] should be sentenced to death. If you determine that any of the aggravating factors exist beyond a reasonable doubt, they can be the only factors used by you to determine the appropriate penalty.
And the only factors you can consider as weighing in favor of, or tending to favor, a death sentence are the aggravating factors that I'm now going to define to you or for you and then only if such factor has been proven beyond a reasonable doubt.
After explaining the aggravating factors alleged by the State in its notice, the trial court instructed the jury that
The State alleges that it has proven the existence of the aggravating factors in question beyond a reasonable doubt. As I told you, the aggravating factors are not established by the defendant's guilty plea to knowing or purposeful murder. Nor were they established from the defendant's guilty plea to burglary or robbery or any of the other offenses to which -- or for which he entered guilty pleas.
In light of both the aggravating and mitigating factors at issue before the penalty phase jury, each of defendant's challenged statements was relevant because each of those statements "ha[d] a tendency in reason to prove or disprove any fact of consequence to the determination of the action."
N.J.R.E. 401. Applying that minimal standard, the statements concerning the force with which defendant kicked the prostrate body of Shirley Hazard had a tendency in reason to prove that either or both murders were knowing and purposeful. Also, the beating of the Hazards' dog to quiet him clearly had a tendency in reason to prove defendant's purpose of escaping detection or apprehension. N.J.S.A. 2C:11-3c(4)(f). Finally, the statements concerning defendant's post-crime conduct had a tendency in reason to prove not only the aggravating factor in respect of escaping detection or apprehension, but also the mitigating factor of whether defendant was remorseful for his crimes. In sum, defendant's statements in respect of his assault on Shirley Hazard, his beating the Hazards' dog to silence him, and his post-crime activities were relevant.
Assessing relevance, however, is only the first half of the necessary inquiry in respect of admissibility; the second half of that inquiry requires an application of the balancing test of N.J.R.E. 403:
"[R]elevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence."
That test requires the trial court to exclude evidence if its probative value is substantially outweighed by the risk of undue prejudice. Evidence claimed to be unduly prejudicial is excluded only when its probative value is so significantly outweighed by its inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the issues in the case. Moreover, the mere possibility that evidence could be prejudicial does not justify its exclusion. Additionally, certain types of evidence, including evidence of motive or intent, require a very strong showing of prejudice to justify exclusion.
[State v. Koskovich, 168 N.J. 448, 486 (2001) (citations, internal quotation marks and editing marks omitted).]
It cannot be contested that defendant's own statements concerning his conduct, both during and after his crimes, were poignantly probative of his actions, particularly in respect of the determination of the quantum of punishment to be imposed for those actions. Each statement spoke directly to the depravity with which defendant committed his crimes and the utter lack of remorse that characterized his post-crime behavior.
For those reasons, the application of Evidence Rule 403's balancing test to the statements challenged by defendant leads to the conclusion that the admission of those statements did not "have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the issues in the case[,]" ibid., and, for that reason, their probative value was not substantially outweighed by the risk of undue prejudice. We, therefore, reject defendant's challenge to the admissibility of his statements to the police in the context of his death penalty sentence.
2. Evidence of the Underlying Crimes
Defendant's second evidentiary challenge addresses the proofs of the crimes themselves tendered by the prosecution during the penalty phase trial. In defendant's view, the fact that he pled guilty to all of the crimes for which he stood charged removed any need for the introduction of any of the substantive proofs concerning those crimes. Thus, defendant concludes, the introduction of proofs concerning the crimes to which he pled guilty was inflammatory and prejudicial. The State replies that, in the context of the aggravating factors -- that is, that the death penalty was appropriate because the murders occurred either during the commission of the crimes of robbery and burglary of both Richard and Shirley Hazard or the murder of Richard Hazard, or because the murders occurred in order to avoid detection of or apprehension for the crimes defendant committed -- the admission in evidence of the facts of the underlying crimes was proper.
Defendant's unqualified and unrestricted admission of guilt for the murders of Richard and Shirley Hazard did not, standing alone, provide him the procedural advantage of barring proofs of those crimes as part of the State's case for the imposition of the death penalty. The standard for admissibility of these facts remained whether the facts were relevant and whether their probative value was substantially outweighed by their undue prejudicial effect. The facts of defendant's underlying crimes of robbery, burglary, murder, and hindering apprehension all are directly relevant to his penalty phase trial because each has a tendency in reason to prove the presence of aggravating factors and the absence of mitigating factors. In that context, the probative value of those facts was not substantially outweighed by their undue prejudicial effect. Therefore, the trial court properly admitted proofs of defendant's underlying crimes as part of his penalty phase proceeding.
3. Crime Scene Photograph
Defendant objects to the introduction of a photograph of the crime scene, repeating again his claim that, because he pled guilty to those offenses, the photograph was unduly prejudicial. The State responds that the trial court properly exercised its discretion and admitted one single photograph showing the debris-covered bodies of Richard and Shirley Hazard and their locations in the basement of the Hazards' home.
As we have noted, we have repeatedly expressed our concern about the admissibility of crime-scene and autopsy photographs in capital cases. Although as a general rule the admissibility of photographs of a crime victim rests in the trial court's discretion, the need to balance the ostensible relevance of such evidence against the likelihood of jury prejudice is especially critical in the penalty phase of a capital case.
[State v. Bey (III), 129 N.J. 557, 609 (1992), supplemented by, 137 N.J. 334 (1994), cert. denied, 513 U.S. 1164, 115 S.Ct. 1131, 130 L.Ed. 2d 1093 (1995) (citations and internal quotation marks omitted).]
As Bey (III) recognizes, the admissibility of a crime scene photograph in a capital case implicates a three-step analysis: is the photograph relevant; is it unduly inflammatory; and did its admission into evidence have the capacity to cause an unjust result. Ibid.
Here, a single photograph was introduced by the State. That photograph shows only a debris-strewn area within which a largely indecipherable body lies, and any injuries to the body, or the location or condition of the second body, are not visible. It corroborated both defendant's statements of what occurred in the Hazards' home as well as the testimony of those who responded to the fire and subsequently discovered the murdered bodies of Richard and Shirley Hazard. As corroboration, the photograph was relevant because it had a tendency in reason to establish the presence or absence of the aggravating or mitigating factors. In addition, as an examination of the photograph reveals, the photograph was not unduly inflammatory and its probative value was not significantly outweighed by any undue prejudicial effect. In light of the foregoing, it cannot be said that the admission of this photograph into evidence had the capacity to cause an unjust result. We therefore conclude that the admission of this single photograph simply was not error. See Bey (III), supra, 129 N.J. at 609.
4. Defendant's Post-Crime Behavior
Defendant contends that everything that happened after he left the Hazards' home was irrelevant because he pled guilty to the crimes themselves. The State counters that defendant's post-crime activities were relevant to the presence of aggravating and the absence of mitigating factors in the case. We agree with the State.
As admitted in defendant's several statements to the police, the post-crime events are as follows. On January 18, 2001, after robbing and murdering the Hazards, burglarizing their home, and deliberately setting fire to the Hazards' home in five separate locations, defendant left the Hazards' home in Mrs. Hazard's car. Defendant was observed driving that stolen car by the husband of one the Hazards' grandchildren, a description that matched the one defendant himself gave of how he was dressed at the time. Defendant first drove to a fast-food restaurant, because he was hungry. Defendant then decided to purchase certain music to listen to while he drove Mrs. Hazards' stolen car. On his way to the shopping mall, the car stalled and defendant abandoned it. While walking the remainder of the way to the shopping mall, defendant drank and discarded a bottle of champagne he stole from the Hazards' home; defendant also discarded the keys to the car he stole from the Hazards' home.*fn4 Once at the shopping mall, defendant purchased new clothing and jewelry. Defendant then called for a cab to drive him around. The cab arrived and first took defendant to his mother's house. Defendant offered some of the jewelry he stole from the Hazards' home to his mother, but she rejected it; defendant then discarded that jewelry in a dumpster nearby his mother's home.*fn5
Defendant had the cab driver drive defendant to an Atlantic City casino hotel. Along the way, defendant had the cab driver stop so defendant could make additional purchases. Once at the casino hotel's parking garage, defendant changed into the clothes he had just purchased because the clothes he was wearing had the Hazards' blood on them. When defendant went to discard the clothes he had just removed, the cab driver requested defendant's permission to keep those clothes and, with defendant's consent, the cab driver placed the clothes in the trunk of the cab. At defendant's request, the cab driver rented three rooms in the casino hotel and assisted defendant in the purchase of alcohol, which was used to stock a bar in the room defendant was to occupy.*fn6 At the casino hotel, defendant exchanged a number of coins he had stolen from the Hazards into paper currency. The cab driver then drove defendant around Atlantic City, where defendant purchased marijuana and collected some friends for the party at defendant's rooms in the casino hotel. Once back at the casino hotel, defendant "had sex with three or four girls[,]" fell asleep, woke up in the bathtub, and climbed into bed.
Meanwhile, the cab driver discussed the events of earlier that day with some of his fellow cab drivers. As a result of that discussion, the cab driver decided to report his suspicions to the police. Because the cab driver originally had picked defendant up in the vicinity of Pleasantville, New Jersey, the cab driver went to the Pleasantville Police Department, reported his suspicions concerning defendant, handed defendant's discarded clothing to the police, and told the police where defendant claimed to have discarded the keys to the Hazards' stolen car, and where defendant could be found.
Based on the information provided by the cab driver, as corroborated by the crime scene and defendant's clothes, the police secured both an arrest warrant as well as a search warrant for the hotel room defendant then occupied. The police arrested defendant at his casino hotel room early the next morning. When the police woke defendant, arrested him and advised him that he was being placed under arrest for a double-murder/arson, defendant's sole concern was why his new clothes appeared to have been casually tossed in the bathtub.
Defendant claims that, because he pled guilty to the underlying crimes charged, none of those proofs should have been admitted. The State contends that the majority of defendant's challenged statements were separately corroborated and, thus, inherently credible. In respect of the remaining challenged statements --- that defendant "had sex with three or four girls" and that defendant's sole concern on being awakened by the police was for the condition of his new clothes --- the State asserts that those proofs provide a motive for robbery and that, in any event, no contemporaneous objection was made to the testimony concerning defendant's statements upon awakening in the police's presence.
Although not all of those items of proof bear the same degree of relevance to the aggravating and mitigating factors in this case, none of them is irrelevant. Thus, evidence concerning defendant's consumption of the champagne stolen from the Hazards' home corroborated his commission of felony murder, an aggravating factor, see N.J.S.A. 2C:11-3c(4)(g), and at least one of the Hazards' children confirmed that the Hazards had in their home a bottle of champagne from the same vintner as the one recovered by the police. Also, proofs of defendant's shopping spree, hotel room rentals, alcohol and drug purchases, and partying all provide motive for the robbery of Richard and Shirley Hazard. Thus, the relevance of these proofs is established.
Furthermore, we find that the probative value of those proofs is not substantially outweighed by their undue prejudicial effect. We reiterate that "[e]vidence claimed to be unduly prejudicial is excluded only when its 'probative value is so significantly outweighed by its inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the issues in the case." State v. Koskovich, supra, 168 N.J. at 486 (citing State v. Thompson, 59 N.J. 396, 421 (1971)). Also, "'[t]he mere possibility that evidence could be prejudicial does not justify its exclusion[,]'" id. (quoting State v. Morton, 155 N.J. 383, 453-54 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001)), and that "[s]ome types of evidence require a very strong showing of prejudice to justify exclusion. One example is evidence of motive or intent." State v. Covell, 157 N.J. 554, 570 (1999).
Because we find that evidence of defendant's post-crime behavior was relevant to the aggravating and mitigating factors in this death penalty phase trial, and because we further find that its probative value is not substantially outweighed by its undue prejudicial effect, we reject defendant's challenges to the admission of the post-crime evidence.
On the whole, then, it cannot be said that any of what defendant claims is "highly inflammatory evidence" -- either portions of defendant's statements to the police; evidence in respect of the crimes themselves; photographs of the crime scene; and evidence of defendant's post-crime behavior -- that should have been excluded from consideration by the death penalty phase jury. On the contrary, we hold that all of those proofs were relevant to the aggravating and mitigating factors in this case, that the probative value of those proofs was not substantially outweighed by their claimed unduly prejudicial effect, and that the trial court's determinations admitting such proofs were not "so wide of the mark that a manifest denial of justice resulted." State v. Nelson, supra, 173 N.J. at 470 (quoting State v. Brown, 170 N.J. 138, 147 (2001)). We, therefore, reject defendant's challenges to his death sentence based on the admission of allegedly "inflammatory" evidence.
III. PROSECUTORIAL MISCONDUCT/PROSECUTORIAL ERROR
Defendant next alleges that there was prosecutorial misconduct throughout the penalty phase trial -- during opening statements, at trial and during summation -- sufficient to require that his death sentence be vacated. Specifically, defendant alleges twelve separate categories of prosecutorial misconduct: (1) improper vouching; (2) engaging in argument during opening statement; (3) disparagement of defense counsel; (4) unwarranted comments and accusations; (5) obstruction of the defense's examination of defendant's cousin; (6) mention of a report prepared by a non-testifying defense expert; (7) equating the death penalty with justice; (8) explanation that the jury should not "feel guilty" about imposing a death sentence; (9) mischaracterization of the penalty phase as concerning what defendant "deserved;" (10) comments concerning defendant's age; (11) name-calling; and (12) improperly focusing on defendant's character.
The State claims that there was no prosecutorial misconduct here and, in any event, that much of what defendant complains of on appeal was addressed by the trial court by way of a curative instruction.
For purposes of analysis, we have divided defendant's contentions into three general categories -- objections to the State's opening statement; objections arising during the evidentiary stage; and objections to the State's summation -- and we address each separately.
Our jurisprudence requires that prosecutors act in accordance with certain fundamental principles of fairness. It was long ago recognized that
The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor --indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his 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.
It is fair to say that the average jury, in a greater or less[er] degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be 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.
[Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935).]
Echoing those precepts, we too have explained that "[a] prosecutor may be zealous in enforcing the law but he must nevertheless refrain from any conduct lacking in the essentials of fair play, and where his conduct has crossed the line and resulted in foul play, the reversal of the judgment below will be ordered." State v. Siciliano, 21 N.J. 249, 262 (1956).
Thus, we have defined the role of a prosecutor similarly:
It is but a truism that prosecutors, as lawyers, are engaged in an oratorical profession. As such, and in consonance with our adversarial method of ascertaining the truth, we properly afford counsel on both sides latitude for forceful and graphic advocacy. Our countenance of a certain measure of verbal flair is, however, tempered by the command that prosecutors are charged not simply with the task of securing victory for the State but, more fundamentally, with seeing that justice is served. Absolute adherence to this duty is stringently compelled in capital cases where the penalty is death. Accordingly, prosecutors should not make inaccurate legal or factual assertions during a trial and . . . must confine their comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence.
[State v. Reddish, 181 N.J. 553, 640-41 (2004) (citations and internal quotation marks omitted).]
In sum, we acknowledge that "[p]rosecutors may fight hard, but they must also fight fair." State v. Pennington, 119 N.J. 547, 577 (1990).
For those reasons, we gauge the consequences of prosecutorial misconduct or error differently. We "evaluat[e] the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial" and conclude that "prosecutorial misconduct is not grounds for reversal of a criminal conviction unless the conduct was so egregious as to deprive defendant of a fair trial." State v. Papasavvas (I), 163 N.J. 565, 625 (2000) (quoting State v. Timmendequas (I), 161 N.J. 515, 575-76 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001) (citations omitted)). Thus, "[t]o justify reversal, the prosecutor's conduct must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Ibid. Also, "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." Ibid. Next, "[the] court must also decide whether the prosecutor's misconduct constitutes grounds for a new trial . . . because, in order to justify reversal, the misconduct must have been so egregious that it deprived the defendant of a fair trial." State v. Smith, 167 N.J. 158, 181 (2001) (citations and internal quotation marks omitted). In sum, "to warrant a new trial the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Id. at 181-82 (citations and internal quotation marks omitted). It is in that context that we consider defendant's prosecutorial misconduct or error claims.
1. Objections to the State's Opening Statement
In the course of his opening statement to the death penalty jury, the prosecutor stated that "[t]he State does not seek the death penalty on a routine basis. It is not something that we do lightly. The State seeks the death penalty when the State believes the facts call for it." Defendant claims that "[t]his is a textbook example of prohibited vouching, in that it amounts to the prosecutor invoking the authority and presumably superior knowledge and experience of the State to provide the jury with reasons, above and beyond the evidence, to arrive at the verdict desired by the State: death."
The State remarks that the contextual basis for defendant's objection is important because the statements were made on the heels of an extensive jury voir dire during which the death penalty phase jurors were subjected to a number of disturbing questions concerning the death penalty. Thus, the reason for that comment, the State asserts, was to explain the link between the lengthy and rigorous jury selection process to which each of those jurors had been subjected and the decision making task the selected jurors were being asked to perform. The State further notes that "[t]he prosecutor did not lead the jury to believe that he had a personal or official belief that defendant deserved a sentence of death based on something beyond the evidence[,]" and that he focused the jury's attention on the proofs to be adduced in the trial, saying that the jury was to determine the matter "based upon what you hear in this courtroom." Finally, the State observes that the trial court denied defendant's motion for a mistrial based on the prosecution's opening statement, explaining that:
With respect to a motion for mistrial, I would deny it at this point in time. I do feel that in light of what was said, either for purposes of clarity as to what is or is not an issue, for purposes of a curative instruction, some curative instructions are necessary as a result of the opening. I would start with RPC 3.4*fn7 and it [is] the Court's estimation that both counsel ran afoul of 3.4 in their openings stating their beliefs. I will probably give an instruction with respect to that. . . .
I will before we proceed further deal with the 3.4 issue.
The trial court then immediately instructed the jury as follows:
If during the course of either opening any counsel referred to their personal opinion or personal belief, that is not a proper aspect of presentation and counsel's belief or counsel's opinion is not evidence and is indeed not proper argument either. So to the extent there was any such argument or presentation made, it should be disregarded by you and you should allow that to play no role in any determination which you make.
Applying the test set forth above, we agree with the trial court's appraisal and handling of defendant's objection to the State's opening statement. Because they had the potential of injecting an element that was factually outside the jury's ken, the prosecutor's comments trod close to the prohibited expression of a personal opinion, raising matters irrelevant to the death penalty phase jury's task. However, although the State's comments may have stretched the bounds of relevance, the trial court promptly and effectively dealt with those comments via a curative instruction. Thus, when "we consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred[,]" State v. Papasavvas (I), supra, 163 N.J. at 625 (quoting State v. Timmendequas (I), supra, 161 N.J. at 575 (citation omitted)), we conclude that, even if the prosecutor's comments could be termed questionable, they were not sufficiently severe, and the potential prejudicial effect on defendant's right to a fair trial was so slight, the relief requested by defendant is unwarranted. We find no basis for reversal in respect of defendant's claim that the prosecutor impermissibly vouched for the State's request for the imposition of the death penalty in the course of its opening statement.
That said, we again emphasize our long-standing rule that "it is improper for the prosecutor to declare his individual or official opinion or belief of a defendant's guilt in such manner that the jury may understand the opinion or belief to be based upon something which he knows outside the evidence." State v. Thornton, 38 N.J. 380, 398 (1962) (citation omitted). The rationale supporting that rule is straightforward: "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," and such added weight may "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.
b. Engaging in Argument During Opening Statement
Defendant points to ten separate instances during the prosecution's opening statement that defendant claims constituted improper argument. Highlighting the specific language defendant claims is particularly improper, those are:
* "This aggravating factor recognizes the evil of killing a witness to a crime. A person, a criminal makes a decision that his freedom, his liberty is more important than the life of his victim or of a witness he is subject or eligible for the death penalty."
* "The Hazards aren't here to tell us how they were victimized, so the crime scene tells us how that occurred."
* "You're going to hear his trying to bring in Clemmons in [what] was the first of many, many lies he told through the course of this investigation."*fn8
* "Stolen property was only found on [defendant]. The Hazards[']s blood, their DNA was found on his clothes. No other evidence suggests anybody else was involved in these crimes. This was an attempt by defendant to minimize his role, his responsibility for these crimes."
* "From [the fast-food restaurant] he goes to a store . . . and I'm not making this up, the reason he goes there is because he can't drive, doesn't like to drive without listening to music so he goes to the [store] to try to get some music."
* "In his first statement the only thing the defendant says he does is act as a lookout, pours some alcohol to help accelerate the fire. He never claims that he inflicted any injuries upon Mr. or Mrs. Hazard. This is his first self-serving statement."
* "[The police] are concerned about his self-serving statements because he tells the police how scared he was, but the next thing he is doing is going on a shopping spree, so the police want to talk to him some more."
* "The defendant has trouble keeping his lies straight about the involvement of Gary Clemmons."
* "The police then move on to speaking about what had occurred in relation to the crime, and the defendant, again, volunteers to write, and he draws some diagrams for the police. He draws diagrams of what happened in the house. He draws things about outside the house where he actually checks where he was standing three or four houses down, not really being the look out and being unfamiliar with the area he doesn't realize that there's no --- he is not being honest, but, again, they don't confront him in the interview, they just let him tell his story."
* "Now the police -- considering this is a double murder and they want to find out everybody who is responsible -- look for Gary Clemmons. It's not like they just decided that they're not going to do anything, and within 20 seconds Gary Clemmons voluntarily walks into the Major Crimes Unit in Northfield and indicates that he was picking up his children in Atlantic City at 4:20 on the day of the crime. The police go down to Atlantic City and talk to two of the daycare workers, speak to them and they remember Mr. Clemmons, they remember him interacting well with his children, so they did investigate when he told them about Clemmons."
According to defendant, those statements exceeded the proper scope of opening statements and, hence, require that defendant's death sentence be vacated.
The trial court twice instructed the jury that the parties' opening statements were not evidence. The State explains that the majority of the comments objected to by defendant constituted representations of what the State intended to, and in fact did, prove at the penalty phase trial and that, in any event, none of the comments made by the prosecutor in his opening statement require reversal.
The scope of the State's opening statement is limited to the "facts he intends in good faith to prove by competent evidence." State v. Hipplewith, 33 N.J. 300, 309 (1960) (citing State v. Haines, 103 N.J.L. 534 (Sup. Ct. 1927)); State v. Ernst, 32 N.J. 567, 577 (1960), cert. denied, 364 U.S. 93, 81 S.Ct. 464, 5 L.Ed. 2d 374 (1961) (holding that, in opening statements, "[a] prosecutor should, as the trial court ruled, limit himself to a statement of what he will prove and not anticipate his final argument."); see also State v. Walden, 370 N.J. Super. 549, 558 (App. Div.), certif. denied, 182 N.J. 148 (2004) ("'A prosecutor's opening statement should provide an outline or roadmap of the State's case. It should be limited to a general recital of what the State expects, in good faith, to prove by competent evidence.'" (quoting State v. Torres, 328 N.J.Super. 77, 95 (App. Div. 2000)). Therefore, we gauge prosecutorial misconduct or error thusly:
[T]he test for determining whether prosecutorial misconduct constitutes reversible error is whether the misconduct was so egregious that it deprived defendant of a fair trial. The goal that rule seeks to foster is that juries [will] . . . reach a verdict and impose a penalty without inordinate exposure to unduly prejudicial, inflammatory commentary. Although we impose a greater burden on prosecuting attorneys than defense attorneys on that issue, [i]t is well-established that prosecuting attorneys, within reasonable limitations, are afforded considerable leeway in making opening statements and summations.
[State v. DiFrisco (II), 137 N.J. 434, 474 (1994) (citations and internal quotation marks omitted).]
So informed, we address defendant's contentions of improper argument constituting prosecutorial misconduct or error in respect of the prosecution's opening statement.
The highlighted comments fairly can be characterized as a recital, albeit with some limited yet permissible rhetorical leeway, of the aggravating factors the State intended to prove. Those comments also responded to the implausibility of the excuses defendant tendered in his various statements to the police, statements the prosecution intended to introduce in its case-in-chief. Thus, those comments do not, whether singly or in the aggregate, suffice to satisfy defendant's burden of demonstrating that the "conduct [by the prosecutor] was so egregious that it deprived defendant of a fair trial[,]" State v. Ramseur, 106 N.J. 123, 322 (1987), particularly in light of the curative instruction provided by the trial court at the close of opening statements. We therefore reject defendant's challenge that the prosecution's opening statement contained impermissible argument.
2. Objections Arising During the Evidentiary Stage
a. Disparagement of Defense Counsel
Defendant alleges that, at several points during the evidentiary stage of the penalty phase trial, the State accused the defense of discovery violations. According to defendant, those accusations constituted disparagement of defense counsel of the type condemned in State v. Nelson, 173 N.J. 417, 461 (2002). Defendant complains of four separate instances when defendant claims his counsel was disparaged by the State, each of which deals exclusively with cross-examination questions regarding the timing of required discovery disclosures from defendant to the State.
The State responds that none of the questions accused defendant or his counsel of discovery violations and that the prosecution never accused defendant or defense counsel of collusion in the presentation of defendant's witnesses. In respect of the first instance claimed as error by defendant --when the State cross-examined defendant's traumatic brain injury expert concerning "a computer printout that the State received last week" -- the State notes that defendant's focus on the timing of the disclosure is belied by the trial court's conclusion that "I don't see the time of receipt of significance in the question posed to the witness."
In respect of the second instance of error claimed by defendant -- when the prosecutor noted in his cross-examination of defendant's brother that the basis of his cross-examination was that he "received today another detailed statement" -- the State explains that defendant specifically requested that the trial court instruct the jury that "the comments of the Prosecutor with respect to suggesting that [the defense] had done something improper with this material is inappropriate and should be disregarded." Abiding by that request, the trial court instructed the jury that when we broke for recess the Court was dealing with a legal issue, which essentially centers around discovery obligations. Essentially, under our practice within limits each side is obliged to turn all their information over to the other side, and I made a determination that there was no delay or no impropriety in [the defense] turning over the information with respect to the supplemental report. Accordingly, you should disregard [the prosecutor's] comments with regard to it.
Defendant neither objected to, nor requested any addition or modification to, this curative instruction.
The third instance involved the State's cross-examination of defendant's expert in clinical neuropsychology. Highlighting a discrepancy between the raw data supporting that expert's report and the language in the report itself, the State sought to determine that the discrepancy only became clear when the State subpoenaed the expert's raw data. Defendant objected, but the trial court deemed the prosecution's questioning proper, ruling that:
What this witness may have chosen to withhold may be relevant on the issue of credibility and meet the credibility relevance, so I will allow cross-examination as to whether he was initially willing to turn it over if that's where the Prosecutor wants to go and whether it took a subpoena to get it. And then counsel are free to make the arguments that counsel chooses to make from there.
With regard to the mistrial, in light of what I have said, I would deny the application for a mistrial. I will invite an instruction with respect to the purpose of this, what it is for and what it is not, on the issue of credibility. I'll tell the jury something to that effect when they get back in, but if there's anything further, counsel, that will be addressed.
Upon the jury's return to the courtroom, the trial court issued the following curative instruction:
An issue has arisen, and I'll give you some instructions with respect to it. The comments with regard to discovery being provided or information being provided[,] I'll instruct you that there has been no discovery violation on behalf of defense counsel or the defendant[,] that there has been no violation of any duty they owed to either the Court or to opposing counsel.
Having said that, you will perhaps -- and you have heard some information and may hear further cross-examination as to when and the circumstances under which the so-called raw data were supplied. That would be before you for a limited purpose and a limited purpose only, and that would be for your purpose in assessing any credibility issues or any credibility determinations that you would make concerning the testimony of this witness.
Again, defendant did not object to or request any addition to or modification of this curative instruction.
Defendant's final instance of counsel disparagement arises in the context of the direct examination of defendant's capital mitigation specialist. During that examination, defendant's capital mitigation specialist described conversations she had had with defendant's mother. The State objected, noting that it had not been provided any information in respect of those conversations. The trial court explained to defendant that he had a continuing obligation to provide witness statements and, in the absence of statements, witness summaries. As a result, the trial court issued an additional curative instruction:
Yesterday, at the close of business, issues arose with respect to a continuing discovery obligation. And out of your presence the Court dealt with some further matters with respect to it; after that I am satisfied that no attorney in this case endeavored to mislead or consciously fail[ed] to follow what they thought was the appropriate obligation of counsel. Rather, we have as you know a hotly contested matter where each side is advocating from their position. Accordingly, whatever happened should not prejudice any side on that. I have taken the responsibility, as is my responsibility, to make sure that the discovery obligations are clear. I think they are clearly understood at this point in time and we're ready to proceed.
That instruction, which also was accepted by defendant without objection, marks the end of defendant's objections to the State's questions concerning when and under what circumstances these defense witnesses -- defendant's traumatic brain injury expert, brother, clinical neuropsychology expert, and capital mitigation specialist -- disclosed to the prosecution matters properly subject to discovery obligations.
An overarching principle guides any inquiry into whether a prosecutor may disparage defense counsel: "[P]rosecutors are prohibited from casting unjustified aspersions on the defense or defense counsel." State v. Nelson, 173 N.J. 417, 461 (2002) (citing State v. Frost, 158 N.J. 76, 86 (1999)). As with each of defendant's earlier claims of prosecutorial misconduct or error, however, the issue for resolution is two-fold: whether the prosecutor committed misconduct, and, if so, "whether the prosecutor's conduct constitutes grounds for a new trial." State v. Smith, 167 N.J. 158, 181 (2001). We have explained that, in order to meet the second part of that test, "the misconduct must have been 'so egregious that it deprived defendant of a fair trial.'" Ibid. (citations omitted). Stated differently, "[t]o warrant a new trial the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Id. at 181-82 (citations and internal quotation marks omitted).
We do not read those three cross-examination questions or one objection posed by the State as an assault on defense counsel. On the contrary, in each instance, the prosecution properly sought to question a witness in respect of materials either recently disclosed or not disclosed at all to the State. Therefore, to the extent that line of questioning or objection raises credibility issues concerning recent fabrication or bias, interest or prejudice, see generally N.J.R.E. 607 ("[A]ny party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility. . . ."), the questions and objection are proper. See, e.g., State v. Silva, 131 N.J. 438, 442 (1993) (holding that "if a witness appears to know of the charges and would naturally be expected to have come forward with the alibi testimony, the witness may be cross-examined about those circumstances of non-disclosure"); State v. Josephs, 174 N.J. 44, 127 (2002) ("In assessing the worth of the defense's case, the jury is entitled to 'consider whether it was receiving a full picture, as interest and bias are always relevant.'" (quoting State v. Timmendequas (I), 161 N.J. 515, 594 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001))).
Furthermore, even if we were to credit defendant's allegations and condemn the State for implying that the defense was derelict in its discovery obligations, we nevertheless conclude that the State's conduct in posing the complained-of questions and objection does not rise to the level where it can be considered "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999); see also State v. Pennington, 119 N.J. 547, 566 (1990) ("[T]he test by which we shall evaluate the prosecutor's misconduct is whether it was so egregious as to deny defendant a fair trial."); State v. Ramseur, 106 N.J. 123, 322 (1987) (same). Therefore, we reject defendant's claim that the State disparaged defense counsel or that, even if so construed, that the State's actions warrant a new death penalty phase trial.
b. Unwarranted Comments and Accusations
In respect of five separate instances during the penalty phase trial, defendant next claims that the State engaged in what defendant characterizes as "unwarranted comments and accusations -- in plain terms, cheap shots -- that distorted the record and greatly prejudiced the defendant." First, defendant contends that, in respect of defendant's expert in the area of traumatic brain injury, the State improperly focused on the expert's fees and failure to treat defendant by inquiring why that physician did not treat defendant. Second, defendant alleges that, in the cross-examination of defendant's clinical neuropsychiatrist, the State also focused on the limitations of the physician's engagement: as solely an expert witness for hire and not as a treating physician.
Third, defendant complains that the State improperly examined on re-cross the director of the Atlantic County Youth Advocate Program*fn9 who, years before, had been assigned to work with defendant. In defendant's view, the State's inquiries as to what programs were in fact available to defendant after the witness was no longer responsible for defendant's care were not properly in response to the witness's admission on re-direct examination that she "should have pushed harder" on defendant's behalf when he was under the witness's care. This, defendant claims, "represents an especially low form of attack: casting aspersions on the witness'[s] sincerity and dedication by forcing her to acknowledge that she 'did not follow up with [defendant]' after leaving the job which was the basis for her contact with him." Fourth, defendant asserts that the prosecutor's rejoinder to the social worker who was retained on defendant's behalf to conduct a social history investigation of defendant was improper. Specifically, in response to the witness's statement to the prosecutor that she did not "feel comfortable relying on what [the prosecutor was] saying[,]" the prosecutor quipped that "the feeling is mutual, ma'am."
Finally, defendant argues that, in the cross-examination of defendant's developmental psychologist, who had a particular expertise in youth violence, the State improperly questioned the psychologist on the basis that his "orientation is not to focus on the injustices that the murderer committed, but the injustices that he experienced." Defendant also claims that the cross-examination of the developmental psychologist based on his prior writings in respect of the attacks on September 11, 2001 were gratuitous, inappropriate and inflammatory. The challenged question and answer were:
Q: Even in the context of the September 11th terrorist attacks, you wanted to uncover the injustices that the terrorists may have suffered, correct?
A: I want to understand everyone who commits a violent act. And terrorists have a developmental history. It is worth trying to understand it, particularly if you want to prevent it in the future.
Defendant contends that this exchange was aggravated by the fact that it had been reported in the newspaper that defendant was a Muslim.
The State asserts that "the prosecutor properly cross-examined [defendant's traumatic brain injury expert and clinical neuropsychiatrist] concerning their fees and their relationships with defendant because these matters were relevant to their partiality, bias, and motive, and hence, their credibility." In respect of the cross-examination of defendant's youth advocacy worker, the State argues that its questions focusing on the services made available to defendant after he was no longer in that worker's care were designed to challenge factually that witness's opinion, elicited by defense counsel, that defendant "was failed by" DYFS.
The State does concede that its rejoinder to the social worker who was retained to conduct a social history investigation of defendant that the "feeling is mutual[,]" that is, that the prosecutor similarly did not "feel comfortable relying on what [the witness was] saying[,]" was unnecessary. The State asserts, however, that the comment was brief, was intended to respond to those instances where the witness claimed that, without verification, she was unwilling to accept the factual premise of any questions posed by the prosecutor, and was the subject of the following colloquy and curative instruction:
[Defense Counsel]: Judge, I object.
[The Prosecutor]: Judge, she said that two or three times. She made that reference to me.
[Defense Counsel]: He has indicated two times in front of the jury and this witness of things that are on the records that were not in the records, so she said I don't feel comfortable relying on it, I want to look at my report. The fact the feeling is mutual is an inappropriate commentary. She wanted to look through her own records. I don't think she said anything disparaging to the Prosecutor.
[The Prosecutor]: I took it differently.
[Defense Counsel]: I don't think it matters how he takes it. It is inappropriate, and I object to that.
The Court: Subject to that interpretation it is inappropriate comment of counsel and should be disregarded by the jury, and if counsel feels that [there are] inappropriate comments being made by the witness[,] that matter can be addressed to the Court for resolution.
The State notes that defendant neither requested further relief nor objected to the curative instruction given.
Finally, the State asserts that its cross-examination of defendant's developmental psychologist was proper because "[t]he prosecutor was entitled to cross-examine this witness about his extreme philosophical positions and professional opinions because they were relevant to his bias, interest, and partiality." The State also remarks that, "the fact that defense counsel indicated that he was going to move for a mistrial on this ground, but then never did and instead pursued an entirely different objection demonstrates that in the context of this trial, defense counsel did not believe that the prosecutor's question was improper or that it prejudiced defendant's right to a fair trial."
Our review of the examination of these witnesses leads to the conclusion that the cross-examination of each of defendant's traumatic brain injury expert, clinical neuropsychiatrist, and developmental psychologist was proper inasmuch as it was geared towards developing whether each of these witnesses was biased or partial in favor of defendant, or whether any of these witnesses bore an interest in the litigation. We have made clear that [a] prosecutor may suggest to the jury that the defense's presentation of the evidence was unbalanced and incomplete. A prosecutor's statements on the deficiency of a defendant's defense and the inferences to be drawn therefrom are permissible as long as they are grounded in the record. In assessing the worth of the defense's case, the jury is entitled to consider whether it was receiving a full picture, as interest and bias are always relevant.
[State v. Josephs, 174 N.J. 44, 127 (2002) (citations and internal quotation marks omitted).]
Applying that standard, we hold that the cross-examination of defendant's traumatic brain injury expert, clinical neuropsychiatrist, and developmental psychologist properly addressed these witnesses' biases, interest and partiality and, hence, was proper.
Defendant's objection to the cross-examination of the youth advocacy worker also is unpersuasive. That witness testified that, in her opinion, defendant "was failed by" DYFS, a matter made relevant by defendant's claim in mitigation that "the State agencies responsible for protecting children from parental abuse and/or neglect did not succeed in protecting defendant."*fn10 In that context, cross-examination designed to elicit the knowledge this witness had of the services that in fact were offered to defendant after he was no longer directly in her care was crucial to the issue defendant himself placed in issue: the degree to which the State had failed defendant in his upbringing, a mitigating factor submitted by defendant under the "catch-all" mitigating factor provided in N.J.S.A. 2C:11-3c(5)(h) ("Any other factor which is relevant to the defendant's character, or record or the circumstances of the offense."). Furthermore, as opinion testimony, that witness was particularly susceptible to cross-examination.
We have made clear "[t]hat the credibility of a witness may be impeached on cross-examination is well settled [and that t]he scope of cross-examination is a matter resting in the broad discretion of the trial court." State v. Martini, 131 N.J. 176, 255 (1993) (citations omitted). Further, in respect of the cross-examination of an expert, we have held that "an expert witness is always subject to searching cross-examination as to the basis of his opinion. . . ." Id. at 259 (citations and internal quotation marks omitted). In that context, we have held:
That "the scope of cross-examination is a matter for the control of the trial court and an appellate court will not interfere with such control unless clear error and prejudice are shown" is well settled. State v. Murray, 240 N.J. Super. 378, 394 (App. Div.), certif. denied, 122 N.J. 334, 585 (1990). In addition, "an expert witness is always subject to searching cross-examination as to the basis of his opinion." Glenpoint Assocs. v. Twp. of Teaneck, 241 N.J. Super. 37, 54 (App. Div.), certif. denied, 122 N.J. 391 (1990). To determine the credibility, weight and probative value of an expert's opinion, one must question the facts and reasoning on which it is based. Johnson v. Salem Corp., 97 N.J. 78, 91 (1984).
We address the State's concession that the prosecutor's rejoinder to the social worker who was retained to conduct a social history investigation of defendant that the "feeling is mutual[,]" that is, that the prosecutor similarly did not "feel comfortable relying on what [the witness was] saying[,]" albeit unnecessary, did not deprive defendant of a fair trial for the following reasons: the comment was brief; the comment was intended to respond to those instances where the witness claimed that, without verification, she was unwilling to accept the factual premise of any questions posed by the prosecutor; and the comment was the subject of an immediate curative instruction.
To be sure, in this specific respect and in this context, we find the prosecutor's conduct to be, at the very least, "unnecessary." However, we also acknowledge that defendant's penalty phase trial was feverishly contested, and emotions ran high throughout the proceedings. In that framework, we recognize that we must not be so idealistic as to close our eyes to the realities of human nature as they are continually portrayed during our trial process. Each criminal trial is a swiftly moving dramatic contest which often evokes strong emotions in the participants.
The charged atmosphere created frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety. [State v. Bucanis, 26 N.J. 45, 56 (1958).]
However unfortunate the exchange between the prosecutor and defendant's social worker may have been, we cannot ascribe to this limited and immediately corrected instance the far-reaching implications defendant seeks. We instead hold that, although the prosecutor's gratuitous comment is worthy of disapproval, and is to be avoided, the exchange was not "so egregious as to deprive defendant of a fair trial" because that comment could not have "substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Papasavvas (I), 163 N.J. 565, 625 (2000) (quoting State v. Timmendequas (I), 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001) (citations omitted)).
c. Obstruction of the Defense's Examination of Defendant's Cousin
Defendant next objects to what he perceives as the prosecution's intentional obstruction of his cousin's direct examination. Defendant called his cousin*fn11 to the stand to plead for his life. At its core, defendant's complaint is that, although he ultimately was able to secure from his cousin all of the testimony he sought in an uninterrupted manner, defendant views the prosecution's earlier objections during her testimony as "unvarnished obstruction, in an evident attempt to circumvent the trial court's allowance of the testimony by impeding its delivery." In response, the State claims that "the prosecutor made appropriate, good faith objections to the testimony of defendant's cousin . . . when her plea for mercy exceeded the permissible scope of relevant mitigating evidence [because defendant's cousin], in connection with requesting the jury to spare defendant's life, . . . began discussing the difficulties of her own childhood."
The exchange on which defendant bases this objection bears setting forth in full:
[Defense Counsel #1]: If you had the opportunity, as I think you have at this point, to ask [the] jury to do something in terms of their decision, what would you like to say to the jury?
[The Witness]: To allow [defendant] to live because he hasn't really lived. He hasn't had a life growing up. None of us did.
[The Prosecutor]: You Honor, I'm going to object I think it has gone ---
[Defense Counsel #2]: I would object to him interrupting this witness after the Court already made a ruling indicating that she would be allowed to do it.
[The Prosecutor]: She's talking about her life, that is not relevant.
[Defense Counsel #2]: Judge, Judge -
[The Prosecutor]: This is [Defense Counsel #1's] witness.*fn12
[Defense Counsel #2]: Judge, I would like to finish my objection.
The Court: She may finish her answer.
[Defense Counsel #1]: Judge, quite frankly I think it was inappropriate, and I will address this -- for [the prosecutor] to interrupt this after the side-bar, I think was done deliberately to take her off --
The Court: I would ask counsel not to get into personalities. There was a ruling as to the subject matter that did not preclude whether the scope of the ruling was exceeded so -- but I have ruled she may finish her answer.
[The Witness]: None of us did really. Uhm . . . at least he is able to eat three meals a day; finish school --
[The Prosecutor]: Your Honor, this goes -- Judge, I need to approach. This is --
[Defense Counsel #1]: Judge, you made a ruling. And I think that we're supposed to be bound by the rulings that this Court made. And I would ask that the prosecutor be bound by the rulings as we are and let this witness finish her answer. He keeps interrupting the plea for life which is done, I submit, deliberately so that it doesn't have the import it would have.
[The Prosecutor]: The witness can't say whatever she wants. She is limited to what she can say.
The Court: I would agree, and you have the right to object on that subject matter. And my ruling on it is that the scope of the Court's ruling hasn't been exceeded yet, in any event.
Immediately following that exchange, the witness provided her very brief testimony on this point without interruption.
We agree with the trial court that the State properly sought to enforce the limitation placed on the scope of this witness's testimony, that is, that her testimony was to be limited to the claimed mitigating factor that defendant was raised in a home without structure, boundaries or positive role models which he could emulate, a mitigating factor also presented under the "catch-all" provision of N.J.S.A. 2C:11-3c(5)(h). When there is a reasonable and good faith expectation that a witness's answer to a question will exceed what is deemed proper under the circumstances, no party is required to sit idly by and allow impermissible testimony to be spread on the record. On the contrary, to the extent possible, the obligation of an advocate is to avoid trying to undo what may be impermissibly done as "[t]he failure to object promptly to questionable comments, although not fatal, may oft-times result in not having the benefit of the trial court's exercise of its remedial powers on the propriety of the statements in issue[,]" State v. Williams, 113 N.J. 393, 452 n.14 (1988), and "[t]he courts have always had the obligation of preventing a jury, at least on objection, from hearing inadmissible evidence[,]" State v. Phelps, 96 N.J. 500, 515 n.3 (1984).
d. Mention of a Report Prepared by a Non-Testifying Defense Expert
In its cross-examination of defendant's clinical neuropsychiatrist, the State referenced the report prepared by that expert. The following exchange then took place:
[The Prosecutor]: Did you know other people would be relying on your report?
[The Witness]: Of course.
[The Prosecutor]: Did you know that Dr. Gary Glass relied on your report, the defense psychiatrist?
[Defense Counsel #2]: Can we be heard, please?
The Court: Counsel may approach.
Defendant objected to any reference to Dr. Glass, claiming that defendant "may never call Dr. Glass, and it is improper for him to be throwing names in front of this jury." The trial court then ruled as follows:
The issue, as I see it, is a narrow one.
You have asked on cross-examination whether he anticipated that others would be relying on his report, and he got an affirmative answer to that. You're now refining it with respect to Dr. Glass. The defense says Dr. Glass may or may not testify. He probably will, he might not, I guess is the fairest statement.
I can't pin them down, but I have to act in a context - - that's the context in which I act.
You have got this witness'[s] anticipation of reliance, and if Glass comes on you can ask him whether he relied upon it.
The State made no further reference to Dr. Glass,*fn13 and defendant sought no curative instruction requesting that the jury disregard any mention of Dr. Glass.
Although satisfied with that resolution then, defendant now claims that "[b]y this maneuver, the State conveyed to the jury that the defense had consulted an expert but would not present him, with the clear implication that the defense was hiding an unfavorable opinion from the jury." Although it made no contemporaneous request for a jury instruction of any sort, defendant now claims that the trial court "did nothing to negate or correct the implication of the question that was asked."
Our review of this single, fleeting question and answer, in the context in which these events occurred, requires that we reject the result advanced by defendant. We fail to see how asking defendant's neuropsychiatrist whether he knew that another doctor had relied on the neuropsychiatrist's report results in the "clear implication that the defense was hiding an unfavorable opinion from the jury" as alleged by defendant. We are most persuaded by the fact that, at the time defendant objected to the question and the trial court sustained that objection, defendant did not seek a curative instruction. In the absence of a request for a contemporaneous curative instruction at trial, defendant's present complaint in respect of the absence of a curative instruction will not be heard. See, e.g., State v. Bucanis, 26 N.J. 45, 57 (1958) ("In most instances, under our system of jurisprudence, the onus is upon the lawyer to safeguard his client . . . through means available in the trial court. Defense counsel is not ordinarily free to scrutinize the record at his later leisure and to secure reversals upon the basis of what he thus discerns as error, unless it definitely comes within the scope of our plain error rule as we have interpreted it.").
3. Objections to the State's Summation
We recently held that, "while a prosecutor's summation is not without bounds, '[s]o long as he stays within the evidence and the legitimate inferences therefrom the Prosecutor is entitled to wide latitude in his summation.'" State v. R.B., 183 N.J. 30, 330 (2005) (quoting State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed. 2d 593 (1969)). We underscored that "'[a] prosecutor may comment on the facts shown by or reasonably to be inferred from the evidence. There is no error so long as he confines himself in that fashion. Ultimately it was for the jury to decide whether to draw the inferences the prosecutor urged.'" Ibid. (quoting State v. Carter, 91 N.J. 86, 125 (1982) (citations omitted)). Isolating small portions of the prosecutor's summation, defendant claims he was denied a fair trial. We disagree. When read in its entirety, the fair import of the State's closing ...