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State v. Jennings


March 27, 2008


On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-04-0827.

Per curiam.


Submitted October 31, 2007

Before Judges Axelrad and Payne.

Appellant filed a pro se supplemental brief.

Defendant, Paul Jennings, appeals from his conviction for first-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2. He was sentenced to ten years in custody, subject to the eighty-five percent period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, defendant raises the following arguments through counsel:





A. The Prosecutor Improperly Bolstered the Testimony of the Two State Witnesses.

B. The Prosecutor Improperly Relied on Theatrics Throughout Cross-Examination of Jennings.

C. The Prosecutor Improperly Equated Justice with a Guilty Verdict.

D. Conclusion.



In a pro se supplemental brief, defendant challenges the applicability of NERA to his first-degree robbery conviction.


At trial, the State established that, on January 22, 2005, at approximately 9:20 p.m., a Newark Chinese Restaurant named the Great Wall was robbed by an African-American man carrying what appeared to be a gun. At the time, no customers were in the store, but four workers were in the restaurant area, and four were in the back. According to Tony Zhang, the restaurant's manager and only employee to testify, the man entered the restaurant, holding a gun, and demanded that Zhang remove the money from the restaurant's cash register. After the man took the money, he stepped back toward the door, but just then, Newark Police Officer Thomas Roe, on break at the time and seeking food, pulled up in his police cruiser. As the man backed out of the restaurant, Zhang pointed and shouted "robber" and "robbery." The man fled, running, with Roe in pursuit. After a short chase the man stopped at an intersection that Roe testified was located at the corner of West Market Street and Fairmount Avenue. Roe testified that he ordered the man to raise his hands and to turn around to face the officer. However, the man, who allegedly was "moving his hands about his waist area" ignored the police commands and continued to move his hands until he tossed a dark object to his right side. Roe then brought the man to the ground by a kick in the knee and forced him to lie prone on his stomach by administering "a knee strike in the torso area." After reinforcements arrived, the man, later identified as defendant, was handcuffed. A search incident to arrest disclosed $134 in paper currency, which was confiscated and later returned to Zhang. Roe then retrieved the black object from a nearby snow pile, determining that it was a black plastic handgun. When asked to describe the defendant's clothing at the time of arrest, Roe stated that he was wearing a black coat, hat and gloves, and a ski mask. Zhang subsequently identified defendant as the robber at the scene of the arrest.

Defendant testified at trial on his own behalf. He stated that, on the evening in question, he had left his residence, located at 250 Georgia King Village, to purchase loose cigarettes at Elvis Groceries on Central Avenue. However, when he got there, the store was closing, so he started home, taking a different route. Defendant stated that, while returning, he saw a couple of people on the street, and then defendant testified:

I had a gentleman, some girl, a guy - someone ran past me, I don't know who it was. They just ran pass me, just - whoosh.

Approximately ten seconds later, someone came running down the street with a gun drawn, stating: "Get down, get down." When the person drew close enough for defendant to see he was a police officer, defendant got down, was kicked in the side, punched in the jaw, and handcuffed. Defendant denied possession of the money and the gun, and he denied both that he had visited the Great Wall restaurant that evening and that he knew Zhang.

In summation, defense counsel challenged Zhang's identification of defendant by noting that Zhang had the opportunity to view only the robber's eyes and nose at the time of the robbery; that Zhang expressed surprise when asked at trial if the robber was in court, stating, "Oh is he here today?" and that Zhang was told that the robber had been caught before he was called upon to identify defendant. Counsel also noted discrepancies in the description of what the robber was wearing. Zhang stated that he had "[s]omething like a towel or a stocking or sock" on his face, whereas Roe stated that he had been wearing a ski mask, and defendant testified that he had been wearing a blue wool hat. Yet, the police had not preserved defendant's head covering as evidence. Further, the State had not called as witnesses any of the other restaurant employees who were present when the robbery occurred. Defense counsel also noted Zhang's inability to determine the amount of money that had been stolen from the restaurant, and both the absence of a chain of custody for the funds when under police control and the absence of a foundation for claimed facsimiles of the money that the prosecutor sought to introduce into evidence. A discrepancy as to the site of the arrest between the testimony of Roe and of defendant was also noted.

Summations were concluded on a Thursday afternoon, and the jury was charged on Friday morning, December 16, 2005. It commenced its deliberations at 10:20 a.m. Shortly before noon, the jury simultaneously sent two notes to the judge, which asked the following questions:

Note 1

1. Did the cop remove money from the defendant?

2. Please read back the route to and from [defendant] Jennings home (his entire route that night).

3. What direction was the supposed guy running from when he ran passed Jennings?

4. Can we have all of the papers submitted as evidence to review?

5. A copy of Officer Roe's testimony. Note 2

1. Can we have a Newark city map?

Appropriate answers to the jury's questions were provided, and the jury was instructed to resume deliberations at 12:00.

At 2:30 p.m., the jury sent a note to the judge indicating that it could not come to a decision. Defense counsel moved for a mistrial, but the motion was denied. The jury was then recharged, and it resumed its deliberations at 2:43 p.m.

Thereafter, at 3:35 p.m., the jury again stated that it was deadlocked. The trial judge then suggested to counsel that the jury be excused for the day and recalled to deliberate on the following Monday, December 19. Following the judge's comments, defense counsel did not renew her motion for a mistrial, stating:

I think that I've had the opportunity to discuss it with Mr. Jennings . . . . He's been in custody since January of last year.

If it was a mistrial and we had to retry it, with my schedule and the court's schedule, I can't imagine it's gonna be any time soon.

It's a very important case and we were gonna ask that they stay later today. But if you're going to bring them back Monday, we would agree with that.

The jury was thereupon excused for the day. It returned on Monday, commenced its deliberations at 10:42 a.m., and reached its verdict less than one hour later, at 11:35 a.m.


We reject defendant's initial argument that the trial judge should have declared a mistrial after the jury declared for the second time that it was deadlocked. The decision to declare a mistrial in the interest of justice is left to the sound discretion of the trial court, which discretion will not be disturbed unless a "manifest injustice would . . . result." State v. Harris, 181 N.J. 391, 518 (2004) (quoting State v. LaBrutto, 114 N.J. 187, 207 (1989)), cert. denied, sub nom Harris v. New Jersey, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005).

The jury's declaration of its inability to reach a verdict "does not require an immediate grant of a mistrial or preclude the judge from giving a non-coercive instruction requiring additional deliberation." State v. Banks, 395 N.J. Super. 205, 218 (App. Div.), certif. denied, 192 N.J. 598 (2007) (citing State v. Czachor, 82 N.J. 392, 403-07 (1980)). In this case, the charge given to the jury immediately after its first notice of deadlock closely conformed to that recommended in Czachor, 82 N.J. at 405 n.4, and complied with the requirements of New Jersey law as most recently stated by the Court in State v. Figueroa, 190 N.J. 219, 231-34 (2007). We thus see no error in that regard. As we have noted, following the second notice of deadlock, the judge excused the jury for the weekend, with defendant's consent and without further instruction on its deliberations. Although we perceive no abuse of discretion in the judge's adoption of this sensible course in circumstances in which a full day's deliberation had not yet occurred, Czachor, supra, 82 N.J. at 406, if error existed, it was waived.*fn1


We are considerably more troubled by defendant's second argument that the prosecutor, Frederick Elflein, conducted an improper cross-examination of defendant in this case, and gave an objectionable closing argument.

At trial, the State called as witnesses restaurant manager Zhang and police officer Roe, while defendant testified in his own behalf. In many respects, defendant's testimony regarding the events preceding his arrest differed markedly from that of the State's witnesses. On cross-examination, the prosecutor properly emphasized the divergence between the versions of events presented. However, in doing so, he repeatedly compelled defendant to acknowledge on the record that if defendant's statements were true, then Roe and Zhang were "lying" or that they were "liars." The following colloquy provides a single example of the prosecutor's attack in this regard, occurring at the very beginning of cross-examination:

Q: Mr. Defendant, let me ask you a question. You've just told [defense counsel] you never met Tony Zhang up until all of this happened. Is that correct?

A: Yes, it is.

Q: You didn't know him before January the 22nd, of this year. Is that correct?

A: That's correct.

Q: You never met Officer Roe before January 22nd, of this year. Isn't that correct?

A: Yes.

Q: So, what you're telling the jury here is that these two witnesses have come in her and lied in front of them. Isn't that right?

A: Yes.

Q: Oh. Okay. They're lying.

Correct? They're lying. Isn't [that] what you've just said?

A: They have to be, it wasn't me.

Thereafter, in the course of defendant's cross-examination, the prosecutor required defendant to characterize the testimony of the State's witnesses as lies or their conduct as lying in similar contexts eleven additional times, without objection, concluding his examination, on re-cross with the following: "Let me ask you this question. If you were sitting here, would you believe you?"*fn2

Additionally, and without foundation for doing so, the prosecutor repeatedly took issue with defendant's consistent statement that he resided at 250 Georgia King Village, thereby suggesting that defendant could not testify truthfully even with respect to his address. After asking defendant how far he had walked to get to the Elvis grocery store, these exchanges culminated in the following:

Q: Right. Where exactly is that [store] in relation to all of this?

A: Central Avenue.

Q: How many blocks?

THE COURT: Mr. Elflein, if you could, how many blocks from where?

Q: Well, let's start from 249 or 250 Georgia King Village?

[DEFENSE COUNSEL]: Objection, Judge. He's indicated 250 Georgia King Village.

THE COURT: Objection sustained.

Q: Whatever residence at Georgia King Village you were living at -

[DEFENSE COUNSEL]: Objection Judge.

(Following takes place at side bar) [DEFENSE COUNSEL]: Judge, while Mr. Elflein may find this entertaining, it is completely improper. There's a witness on the stand, questions should be asked of that witness. We don't need the commentary. I've been chastised about that. This has gone way over that.

THE COURT: Mr. Elflein, I agree with [counsel]. You are an extremely competent attorney. You know how to cross-examine a witness without all the unnecessary comments or the theatrics. There has been a couple of 'em, I can understand; but it's gotten to the point now where it's crossed the line. So, I'm gonna ask that you limit your questions to the facts in the case while you're cross-examining. There's no need for extra commentary or any theatrics or dramatics.

After it was confirmed by a read-back that defendant had consistently stated his address, the court again admonished the prosecutor, stating: "Mr. Elflein, please, you know, limit - limit the theatrics in the remainder of the cross-examination."

Nonetheless, after further cross-examination of defendant with respect to his route to and from the store he "supposedly"*fn3 visited, the following exchange took place:

Q: Where exactly in relationship to Fairmount, to Central and to West Market is this building?

A: Which building?

THE COURT: Mr. Elflein - Mr. Elflein, I'm not gonna . . . warn you again. There's no reason to slap your head. You asked a question, he asked a question. No more theatrics.

In closing argument, the prosecutor returned to the theme of lying, stating:

The defendant took the stand and on cross-examination, I wanted to make it very, very clear to all of you, ladies and gentlemen, exactly what we were talking about here. I said to the defendant: Are you saying to this jury that the victim and the police officer are lying? And you will recall, I think that I asked it not once but several times. I wanted to have this crystal clear in your heads. That's exactly what the defendant said these two people did. They came in here and lied in front of you.

The prosecutor then characterized defendant's version of events as a "fairy tale," and after further argument with respect to the evidence, the prosecutor turned to defense counsel's closing argument, stating:

Ladies and gentlemen, you have seen a sterling example of what a good defense attorney will try - or can try to do with no evidence at all. The defendant was caught red handed. He was interrupted in the middle of this robbery and yet still, [defense counsel] has made the best possible argument she could on his behalf, even with nothing there. That's not her fault. She's stuck with the facts of the case -

At this point, defense counsel objected, and the objection was sustained without further comment by the judge.

The prosecutor then concluded his summation by stating:

I remember once very, many years ago. I was sitting in a courtroom in this building. I was listening to one of my colleagues sum up in front of the jury. . . . And he said ladies and gentlemen, he said everybody complains about the weather. He says you know, but there's really nothing you can do about that, he says it's an act of God. There's absolutely nothing you can do about it. But in this particular instance, a crime has been committed and you can do something about that. You have heard the evidence. Very shortly, you're going to see the physical evidence and there is something you can do about that. You can see that justice is done.

Now, for the last day or so, you've heard me ask a number of witnesses a lot of question. Miss Hurley [the prosecutor's colleague] and I have asked Officer Roe and Mr. Zhang and I've asked the defendant a lot of questions. But there's one more question that has to be asked and it's one that only the jury can answer. And that question is simply this, ladies and gentlemen: Are you going to see that justice is done here?

And with that, I thank you for your time.

We regard those aspects of the prosecutor's cross-examination of defendant that we have set forth to have been improper. Ample New Jersey precedent establishes that a prosecutor may not require one witness, and particularly a defendant, to assess the credibility of another. State v. Bunch, 180 N.J. 534, 549 (2004); State v. Frisby, 174 N.J. 583, 594-95 (2002); State v. T.C., 347 N.J. Super. 219 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003); State v. Green, 318 N.J. Super. 361, 377-78 (App. Div. 1999), aff'd, 163 N.J. 140 (2000). Federal precedent is in accord. See United States v. Thomas, 453 F.3d 838, 846 (7th Cir. 2006); United States v. Harris, 471 F.3d 507, 511 (3d Cir. 2006); United States v. Williams, 343 F.3d 423, 438 (5th Cir.), cert. denied, 540 U.S. 1093, 124 S.Ct. 966, 157 L.Ed. 2d 800 (2003); United States v. Sanchez, 176 F.3d 1214, 1219-20 (9th Cir. 1999); United States v. Sullivan, 85 F.3d 743, 749 (1st Cir. 1996); United States v. Boyd, 54 F.3d 868, 871 (D.C. Cir. 1995); United States v. Richter, 826 F.2d 206, 208 (2d Cir. 1987).*fn4

As we observed in State v. J.Q. in the context of expert opinion:

The question of whether a particular witness is testifying in a truthful manner is one that must be answered in reliance upon inferences drawn from the ordinary experiences of life and common knowledge as to the natural tendencies of human nature, as well as upon observations of the demeanor and character of the witness. The phenomenon of lying, and situations in which prevarications might be expected to occur, have traditionally been regarded as within the ordinary facility of jurors to assess. For this reason, the question of a witness' credibility has routinely been regarded as a decision reserved exclusively for the jury.

It is an encroachment upon the province of the jury to permit admission of expert testimony on the issue of a witness' credibility. [252 N.J. Super. 11, 39 (App. Div. 1991) (quoting Commonwealth v. Seese, 517 A.2d 920, 922 (1986)), aff'd, 130 N.J. 554 (1993).]

That rationale is equally applicable in the present layman's context. As the Third Circuit recognized in Harris, such improper questions regarding credibility "invade the province of the jury and force a witness to testify as to something he cannot know, i.e., whether another is intentionally seeking to mislead the tribunal." 471 F.3d at 511. Additionally, "such questions force defendants into choosing to either undermine their own testimony or essentially accuse another witness of being a liar." Ibid.

A number of decisions have held, when (as here) no objection is made at trial to the prosecutor's tactic and the judge properly instructs the jury that it must determine credibility, that this error, alone, is insufficient to warrant a new trial. See, e.g., Bunch, supra, 180 N.J. at 549; T.C., supra, 347 N.J. Super. at 238-39; Green, supra, 318 N.J. Super. at 378. However, in those cases, the prosecutorial error was singular in nature. As we recognized in T.C., supra, 347 N.J. Super. at 239, a different result may be mandated when more than one form of prosecutorial misconduct took place.

Here, the prosecutor not only employed the tactic of impeaching defendant by requiring him to label the State's witnesses liars on multiple occasions, he was also chastised three times during his cross-examination of defendant for his "theatrics," and as the extract we have quoted demonstrates, the court's comments occurred only after several other similar instances were permitted to occur. Further, on multiple occasions the prosecutor impugned defendant's testimony as to where he lived, without foundation or relevance. That the prosecutor personally found defendant's version of events to be incredible was expressed throughout the cross-examination by conduct, by sarcasm,*fn5 and by use of adjectives expressing his disbelief. While we do not view any of these tactics, alone, as requiring reversal, we are concerned by their cumulative effect.

We have recognized in other cases in which prosecutorial misconduct was claimed that, although prosecutors have an obligation to present the State's case forcefully and graphically, "prosecutors also have the overriding obligation to see that justice is fairly done." State v. Gregg, 278 N.J. Super. 182, 190 (1994), certif. denied, 140 N.J. 277 (1995). As our Rules of Professional Conduct state: "A lawyer shall not: . . . (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence . . .or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused." RPC 3.4(e).

In considering whether the prosecutor's conduct in this matter was sufficiently prejudicial to require reversal of the jury's verdict, we also are mindful of the prosecutor's statements in closing argument that denigrated defense counsel and the defense proffered in the matter and also urged that justice be done, by implication, through the jury's return of a guilty verdict. With regard to the former, it is clear that "prosecutors are prohibited from casting unjustified aspersions on the defense or defense counsel." State v. Wakefield, 190 N.J. 397, 446 (2007) (quoting State v. Nelson, 173 N.J. 417, 461 (2002)), cert. denied, sub nom Wakefield v. New Jersey, ___ U.S. ___, 128 S.Ct. 1074, 169 L.Ed. 2d 817 (2008). Here, the prosecutor did just that, stating that there was "no evidence at all" favoring defendant, and impugning counsel, who argued to the contrary, by characterizing her efforts as typical of what a "good defense attorney" will do when the evidence is unfavorable, even when there is "nothing there" to work with, and counsel is "stuck with the facts of the case." Although counsel objected to the argument, and the objection was sustained, the jury was not given any immediate curative instruction.

With respect to the latter, we have held that stating to jurors that it is their responsibility to convict is improper. State v. Stewart, 162 N.J. Super. 96, 104 (App. Div. 1978); see also State v. Josephs, 174 N.J. 44, 125 (2002); State v. Brown, 138 N.J. 481, 557 (1994); State v. Pennington, 119 N.J. 547, 575-76 (1990); State v. Coyle, 119 N.J. 194, 230-31 (1990); State v. Rose, 112 N.J. 454, 520-21 (1988). As the United States Court of Appeals for the Ninth Circuit has observed:

We have consistently cautioned against prosecutorial statements designed to appeal to the passions, fears and vulnerabilities of the jury, as in United States v. Koon, 34 F.3d 1416, 1443 (9th Cir. 1994), quoting United States v. Monaghan, 741 F.2d 1434, 1441 (D.C. Cir. 1984):

A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence. Jurors may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem. The amelioration of society's woes is far too heavy a burden for the individual criminal defendant to bear. [United States v. Weatherspoon, 410 F.3d 1142, 1149 (9th Cir. 2005).]

In the present case, the jury's verdict should have turned on which of two versions of what occurred they believed - that of defendant or that of the State's two witnesses. The prosecutor's argument was impermissibly designed to turn the jury's attention away from that focus to a righting of societal ills through effectuation of an abstract concept of justice.

Moreover, the argument suggested that justice could be achieved only by conviction. Such argument, although not met with an objection, was nonetheless improper. We regard this as a circumstance in which the trial judge should have intervened with a curative instruction, regardless of the absence of an objection by counsel. State v. Thornton, 38 N.J. 380, 400 (1962); see also State v. Guido, 40 N.J. 191, 207 (1963).

In order for prosecutorial misconduct to be a ground for reversal, that misconduct must be "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citing State v. Ramseur, 106 N.J. 123, 322 (1987)); see also Wakefield, supra, 190 N.J. at 446. In conducting an evaluation of the conduct in the present matter, we must consider "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Frost, supra, 158 N.J. at 83. "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Ibid. (citing Ramseur, supra, 106 N.J. at 323).

Here, we are confronted by a pattern of misconduct on the prosecutor's part, to which many vigorous objections were raised, but those objections did not encompass either the prosecutor's "lying" theme*fn6 or his argument urging the jury to do justice. But we are also faced with circumstances in which objections, when sustained (and most were), were not followed at the time by curative instructions of any nature, but only by the general instruction, administered the following day, that "[a]rguments, statements, remarks, openings and summations of counsel are not evidence and must not be treated as evidence." The Frost Court has recognized that sometimes such a general charge may ameliorate potential prejudice caused by remarks that are only slightly improper. But there are occasions when the cumulative effect of prosecutorial misconduct renders a single curative instruction insufficient to overcome the potential prejudicial nature of the prosecutor's improper remarks. Id. at 87.

Moreover, in Frost, as here, "[c]redibility was the critical issue in the case." Further there, as here, all of the prosecutor's improper remarks, except the instruction to do justice, related to credibility. In this context, the Frost Court held that: "When a jury must choose which of two opposing versions to credit, it simply cannot be said that the evidence [of defendant's guilt] is overwhelming" thereby rendering any error harmless. Ibid. And,

[e]ven if the evidence were overwhelming, that could never be a justifiable basis for depriving a defendant of his or her entitlement to a constitutionally guaranteed right to a fair trial. The impact of violating a defendant's right to a fair trial cannot be measured by, or weighed against, the quantum of evidence bearing upon his or her guilt.

This Court has repeatedly expressed concern for prosecutorial propriety. We have said time and again that "because the prosecutor represents the government and people of the State, it is reasonable to say that jurors have confidence that he will fairly fulfill his duty to see that justice is done whether by conviction of the guilty or acquittal of the innocent." His comments during opening and closing carry the full authority of the State.

Hence, we cannot sit idly by and condone prosecutorial excesses. [Id. at 87-88 (citations omitted) (quoting State v. Spano, 64 N.J. 566, 568 (1974) (citations omitted)).]

A further reason for not adopting the argument that the overwhelming nature of the State's evidence of defendant's guilt rendered any improper conduct by the prosecutor immaterial, whatever error standard we employ, is that, as evidenced by the jury's questions to the judge, it did not regard defendant's claims to have been fanciful, but instead considered them carefully. Having done so, the jury found itself incapable of reaching a unanimous decision in the case, despite relatively lengthy deliberation, twice informing the judge that it was deadlocked, and convicting only after a weekend recess. In these circumstances, we cannot dismiss the argument that the cumulative effect of the prosecutor's improper conduct substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense. Wakefield, supra, 190 N.J. at 446; State v. Goode, 278 N.J. Super. 85, 92 (App. Div. 1994) (reversing verdict and remanding for retrial after finding prosecutor's misconduct constituted plain error); State v. Sherman, 230 N.J. Super. 10, 18-19 (App. Div. 1988).

As a consequence, we reverse and remand this matter for a new trial, thereby rendering it unnecessary for us to address defendant's remaining arguments with respect to his sentence.

Reversed and remanded for further proceedings in light of this opinion.

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