January 18, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES MORDAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 06-06-0240.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2010 - Decided Before Judges Wefing and Payne.
Defendant was found guilty at a jury trial of robbery, N.J.S.A. 2C:15-1, a crime of the second degree; aggravated sexual assault, N.J.S.A. 2C:14-2a(3), a crime of the first degree; sexual assault, N.J.S.A. 2C:14-2c(1), a crime of the second degree; aggravated criminal sexual contact, N.J.S.A. 2C:14-3a, a crime of the third degree; criminal restraint, N.J.S.A. 2C:13-2a, a crime of the third degree; and the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1a(1). The trial court granted the State's motion to sentence defendant to an extended term, N.J.S.A. 2C:44-3a, and sentenced defendant to an aggregate term of thirty years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we have concluded we are constrained to reverse and remand for further proceedings.
The incident upon which defendant's convictions rested occurred shortly before 9:00 p.m. on the evening of August 20, 2001, in Phillipsburg. J.K. lived in Easton, which is separated from Phillipsburg by the Delaware River. She decided to visit a friend who lived in Phillipsburg and walked across a bridge described in the record as the "free bridge." Her friend lived in a basement apartment that was accessible through an alley to the rear of the property. While she was knocking on the door, she was assaulted from the rear. She attempted to fight off her assailant, and the two fell to the ground. As the two struggled, her assailant lifted her shirt and fondled her breasts. He also pulled down her pants and penetrated her digitally. He eventually gave up the fight and fled with her pocket book. She ran to a nearby store where she reported what had happened, and the police were summoned. She was unable to identify her assailant. Several people had been in the area and reported seeing a man running away; they were not asked to attempt an identification. J.K. did, however, tell the police that her attacker had been wearing a white bandana, which was found on a nearby parking meter. At one point, she said she had torn it from her assailant's head and put it on the meter before running to the market. At another, she said her assailant had tied her wrists with the bandana, and she had used the parking meter to free herself. The police who responded to the scene recovered this bandana, together with a few items that she identified as having been in her purse. The police took her to the hospital for examination and treatment.
The bandana, together with several other items related to the investigation, were delivered to the New Jersey State Police Laboratory for testing. Material was retrieved from the bandana, and a DNA test was performed. Several hair strands were recovered with the bandana but they were never tested.
The results of the DNA test did not lead to anything further, however, until 2004, when the Phillipsburg police were notified that the sample recovered from the bandana matched defendant's DNA profile. At the time the police received this information, defendant was incarcerated at MidState Correctional Center for another offense. A detective from the Warren County Prosecutor's Office and an officer from the Phillipsburg Police Department traveled to MidState to interview defendant. They began by advising defendant of his Miranda rights. Miranda v. Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966). At first, he denied any knowledge of the incident. Later, he said he had seen J.K. enter the alley and that he had followed her, intending to rob her because he needed money. He said he grabbed her purse and that she resisted. He said the two of them struggled and landed on the ground. He said he ran off with her purse but denied committing any sexual acts during their encounter.
The prosecution presented a number of witnesses during the course of the trial. Defendant did not testify and did not present any witnesses.
Defendant raises two arguments on appeal:
POINT I THE TRIAL JUDGE ERRED IN REFUSING TO GRANT THE DEFENSE REQUEST FOR A MISTRIAL AFTER THE PROSECUTOR EXPRESSED HIS PERSONAL OPINION ON THE DEFENDANT'S GUILT, COMMENTED ON HIS FAILURE TO TESTIFY AND VOUCHED FOR THE VERACITY OF THE STATE'S WITNESSES. POINT II THE DEFENDANT'S SENTENCE IS EXCESSIVE.
Because we agree with defendant's contention that the prosecutor, in his summation, improperly commented to the jury on defendant's failure to testify, we reverse defendant's conviction. This conclusion makes it unnecessary to address defendant's remaining contentions.
The significance of the prosecutor's remarks can only be appreciated by referring to the summation of defense counsel, in which he stressed repeatedly the prosecution's failure to present any witness who placed defendant at the scene. He noted that when the bandana was tested, DNA of another "minor" contributor was found. He noted as well that the bandana contained several hair strands, but there was no effort to determine whether they belonged to defendant or another individual. He noted also that the victim had given several different versions of how the bandana ended up on the parking meter. He pointed out that defendant was from the area in which the assault occurred and asked the jury to consider that people lose bandanas. Defense counsel stressed this latter contention at various points throughout his summation. He said, for instance, Let's just work on the bandana stuff. That bandana is not totally, or at all, strong enough to say that my client definitely did these dastardly acts. The only thing it show[s] is that at one time he wore that bandana. That's all it shows, or he had that bandana. Other people could have had it. Apparently someone else did, the minor (indiscernible) apparently has the bandana for a while. Did it belong to the victim or did it belong to the actual perpetrator? Did the State DNA laboratory attempt to find out? Yes, they (indiscernible) swab. It was never forthcoming. But then again, the State DNA laboratory kind of dropped the ball, as well, because they were also asked to type the hair, to determine DNA from the hair. They didn't do that either.
Later, he remarked, If you are going to find my client guilty, which is going to be very difficult indeed, because there's been really no evidence against him, it cannot be explained, and it has to be without a reasonable doubt. And there is reasonable doubt -- in fact[,] there's overwhelming doubt, because my client wasn't there. His hat was, his bandana was, but what else? Anything we have -- anything that the State has beyond that is concocted by the State. And, as I mentioned before[,] the State puts [my] client there because he's a regular in the neighborhood, so therefore that would explain the bandana.
The prosecutor sought to disarm this argument. While that objective was entirely permissible, the method used was not. He told the jury:
Now let's talk about the evidence, circumstantial evidence, if you like. I was here during the trial and you were here during the trial. Let's talk about the evidence that came from here, came from this witness stand. I give -- I'm the one who presents direct testimony, I have witnesses to question, they have the opportunity to cross-examine.
No evidence came from this witness chair, not a scintilla of evidence that came from this witness chair, that this bandana was lost.
Shortly thereafter, he continued:
But realistically from this witness stand what -- what suggestion, what evidence is there that this thing was ever lost? You can suggest things, you can make innuendoes of things in closing arguments, but what you're supposed to base your case on is what comes from here. . . . .
Okay, the crux of his defense is certainly not that the DNA is not his DNA. He admits it, he knows it, it's incontrovertible.
It's one person in 120 billion. It's Mordan's DNA. But what has to happen for someone else, for him to lose it evidently -- although we haven't heard any testimony, as I said -- that means what?
At the end of the prosecutor's summation, defense counsel moved for a mistrial, based upon these specific references to defendant not having presented any affirmative evidence during the course of the trial. The trial court denied defendant's motion, characterizing the prosecutor's comments as merely noting that none of the reports prepared after this incident referred to a lost bandana. In our judgment, the trial court's characterization of the prosecutor's summation was overly generous. In addition, it overlooked the fact that the remarks went, as the prosecutor himself noted, to the "crux" of the defense.
We have repeatedly commented on the impropriety of remarks by the prosecutor implying to a jury that a defendant has an obligation to present any evidence at all. In State v. Jones, 364 N.J. Super. 376 (App. Div. 2003), the defendant was charged with aggravated assault, possession of a weapon for an unlawful purpose and unlawful possession of a weapon. He was found not guilty of aggravated assault and convicted of the two weapons offenses. Id. at 378. During the course of the case, defense counsel cross-examined various witnesses to elicit testimony that no fingerprint tests had been performed on the weapon, and he commented on that omission in his summation. Id. at 381-82. In response, the prosecutor noted that while the defendant had no burden of proof, the jury should ask itself why defendant had not dusted the gun for fingerprints. Id. at 382. We noted the Supreme Court's statement in State v. Frost, that "[t]he impact of violating a defendant's right to a fair trial cannot be measured by, or weighed against, the quantum of evidence upon his innocence or guilt." 158 N.J. 76, 87 (1999) (citations omitted). We further noted that the Court in Frost directed a tripartite test to measure the impact of improper remarks in a prosecutor's summation and thus to determine a proper remedy:
(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. [Id. at 83. (citations omitted).]
Here, defendant's attorney did make a timely objection, the remarks were not withdrawn, they were not stricken from the record, and a corrective instruction was not given.
State v. Cooke is also instructive. 345 N.J. Super. 480 (App. Div. 2001), certif. denied, 171 N.J. 340 (2002). In that case, the defendant was charged with two counts of burglary, two counts of aggravated sexual assault and two counts of sexual assault. Id. at 483. The jury found him guilty of one count of sexual assault. Ibid. The victim testified that on two occasions, he awoke on the living room couch in the home he shared in Rutherford to find a man performing oral sex upon him. Id. at 484. The police responded to the second incident and arrested the defendant. Ibid. Although defendant did not testify or present any witnesses, the defense at trial was consent. Id. at 485. In the course of his summation, the prosecutor remarked:
Now, let's look back at the defense theory. Consent again.
Now, the Judge instructed you [on] the evidence in this case, where does it come from? From the stand when the witness takes it.
You have heard zero evidence in this case about consent. The only evidence you heard over there was the victim say that there was no consent. [Ibid.]
Defendant's attorney did not move for a mistrial but did object, and the trial court gave a clear and strong curative instruction. Ibid.
Ladies and Gentlemen of the jury, I am instructing you to totally disregard anything you might have heard referring to the only evidence you heard over there. Okay. You must totally disregard this statement. Do not consider it. Wipe it from your mind and certainly you're not to use it during any of your deliberations. Everybody understand that? [Id. at 486.]
We noted that these remarks were clearly improper, but we declined to reverse defendant's conviction in light of the strong and immediate curative instruction provided by the trial court. Ibid. Here, this defendant did not receive such relief.
We acknowledge the strength of the evidence presented against defendant. That, however, does not give the prosecution license to present improper arguments, and it does not authorize us to disregard that impropriety when a defendant has properly sought relief but to no avail.
Defendant's convictions are reversed, and the matter is remanded to the trial court for further proceedings.
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