July 27, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-09-1547.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 17, 2011
Before Judges Carchman, Messano and Waugh.
Pursuant to defendant A.M.'s motion, the first five counts of a thirty-count indictment returned by the Bergen County grand jury were severed for purposes of trial. In those five counts, defendant was charged with two counts of first-degree aggravated sexual assault of Jane Doe, N.J.S.A. 2C:14-2(a)(1) (counts one and three); two counts of third-degree endangering Jane's welfare, N.J.S.A. 2C:24-4(a) (counts two and four); and fourth-degree lewdness, N.J.S.A. 2C:14-4(b)(1) (count five).*fn1 The charges in counts one and two related to an incident that allegedly occurred on June 25, 2008, when Jane was eight years old; the charges in counts three, four, and five related to incidents allegedly occurring on various dates between September 22, 2003 and June 24, 2008.
The jury convicted defendant of all counts and his motion for a new trial was denied. After merging count two into count one, and count four into count three, the judge imposed concurrent eighteen-year sentences on the aggravated sexual assault convictions, along with a mandatory eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He imposed a concurrent one-year term of imprisonment on defendant's lewdness conviction, also subject to NERA. The State concedes that NERA does not apply to the lewdness conviction and consents to a remand for entry of an amended judgment of conviction. Additionally, defendant was ordered to register as a sex offender pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -23, and placed on parole supervision for life. This appeal followed.
Defendant raises the following arguments for our consideration:
THE TRIAL COURT ERRED IN NOT ALLOWING DEFENDANT TO INTRODUCE EVIDENCE CONCERNING THE ANATOMICAL DOLLS AND THE SEXUAL[LY] EXPLICIT ARCADE GAMES DURING CROSS EXAMINATION.
POINT II THE STATE TRIED TO IMPERMISSIBLY INFLAME THE JURY BY PRESENTING EVIDENCE OF [JANE'S] ILLNESS BEYOND THE BOUNDARIES OF THE COURT'S PRE-TRIAL RULING.
POINT III THE PROSECUTOR['S] COMMENTS ABOUT THE DEFENDANT'S PRE-TRIAL [SILENCE] DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL.
POINT IV PROSECUTOR'S COMMENTS DURING HER SUMMATION WERE TANTAMOUNT TO PROSECUTORIAL MISCONDUCT AND DENIED [DEFENDANT] THE RIGHT OF A FAIR TRIAL.
A. THE PROSECUTOR IMPROPERLY SUGGESTED TO THE JURY THAT THE DEFENSE WITNESSES WERE COACHED.
B. THE PROSECUTOR IMPROPERLY COMMENTED, ON TWO OCCASIONS, ABOUT DEFENDANT'S PRE-TRIAL SILENCE AFTER THE COURT HAD PREVIOUSLY SUSTAINED DEFENSE COUNSEL'S OBJECTION TO SUCH INQUIRY AND COMMENT.
C. THE PROSECUTOR IMPROPERLY ANALOGIZ[ED] [DEFENDANT] AS A "MASS MURDERER" AND/OR "SERIAL KILLER"; REFERRED TO HIM AS DR. JEKYLL AND/OR MR. HYDE; AND SUGGESTED THAT HE IS A PEDOPHILE.
D. THE PROSECUTOR IMPROPERLY COMMENTED ON THE TESTIMONIAL EVIDENCE OF [EDDIE DOE] WHICH WAS NOT INTRODUCED DURING THE TRIAL.
E. PROSECUTOR'S COMMENTS DURING HER SUMMATION THAT A CONVICTION WAS THE ONLY JUST RESULT ARE TANTAMOUNT TO PROSECUTORIAL MISCONDUCT.
We have considered these contentions in light of the record and applicable legal standards. We affirm.
The Doe family and the M. family were neighbors and close friends. Jane and her older brother, Eddie, referred to defendant and his wife, C.M., as aunt and uncle. Eddie was best friends with defendant's son, A.M., Jr., and defendant's daughter, M.M., was a frequent guest with her family in the Doe home. The families "socialized" at least twice a week and also vacationed and celebrated birthdays together.
The large home owned by the Does was the focal point of these gatherings that often included other neighbors. The first floor of the home included a home theater; the basement included a television room, a game room with numerous arcade-type video games, and a casino room that had both blackjack and craps tables. There was a swimming pool in the backyard.
The families often watched television or movies together and, on such occasions, defendant would often sit with Jane on his lap, both of them covered by a blanket. Jane's mother, Dawn, did not consider this behavior to be unusual because defendant and Jane "had a very fun, loving relationship" that involved mutual tickling, wrestling, and "clown[ing] around."
On Wednesday evening, June 25, 2008, defendant took his son, Jane, and Eddie to a movie. The theater was not crowded and the four sat in the middle of a row of seats. Jane could not see the screen, so defendant told her to get on his lap, which she did. After the movie, defendant drove the Doe children home before returning to his home with his son.
Thereafter, the Does traveled to their vacation home in New York. On Saturday, June 28, 2008, the family watched a television show dealing with child abduction and sexual assault, after which Stuart, Jane's father, and Dawn reminded their children to tell them if anyone ever touched them in an improper manner.
While Dawn was helping Jane prepare for bed, Jane told her, "[Defendant] touched my vagina." Dawn called Stuart into the room, whereupon Jane told them that while she was sitting on defendant's lap at the movie theater, he put his hand into her underpants and rubbed her. Jane experienced pain, closed her legs, and returned to her seat, at which point defendant said that he would not do that again and that the incident "was going to be their secret." Jane also said that defendant had been "doing it for a while, like since she was . . . four," while watching television or movies at home.
Later that night, Stuart contacted a friend who was a police detective and told him of Jane's revelations. The detective stated that he would contact the prosecutor's office.
The Does returned home the next morning. Later in the day, they called C.M. and asked her to come to their house. Before she arrived, defendant called the Does wanting to know why they wished to see C.M., and asking, "[W]hat [is] going on?" Stuart told defendant, "[Y]ou know what's going on." Stuart and Dawn told C.M. that defendant had been molesting their daughter for years. C.M. began to cry. Defendant called the Does again and, according to Stuart, when told about Jane's allegations, initially denied them. However, Stuart testified that during the conversation, defendant eventually "admitted that he had done this," "said he need[ed] help," and that "he didn't mean to hurt [Jane]." Defendant testified to the contrary, claiming that he denied ever molesting the child.
Later that day, personnel from the prosecutor's office interviewed Stuart, Dawn and Jane. By 10:00 p.m. that evening, the officers decided to conduct a "consensual overhear" in an attempt to have defendant make incriminating statements. Stuart placed a call to defendant while the officers listened and recorded the conversation.
The taped conversation was played for the jury. In it, defendant denied digitally penetrating Jane's vagina at the theater but admitted putting his hand inside of her pants and grabbing her buttocks as she sat on his lap. When Stuart asked defendant what prompted him to do this, defendant replied, "I cannot explain to you . . . . I love God and I know this is not who I am. I have just a fascination. Just . . . a wonder. You know?" Defendant maintained that he was not sexually aroused by his actions. Stuart again asked why defendant acted as he did. He replied, "I don't know. Because she was laying on my lap and I just . . . love [Jane]. And I did fuck up. I'm absolutely fucked up. God damn stupidest, fucking thing ever in my life."
Defendant initially denied Jane's claim that he showed the child his penis. However, as he continued to be recorded, defendant acknowledged that it might have happened when he and Jane were playing. Defendant was arrested later that night.
At trial, Jane testified that defendant inserted his finger into her vagina while she was sitting on his lap at the movie theater. She tried to close her legs, but defendant pulled them apart and again touched her. When she returned to her seat, defendant told her to sit back on his lap. When she refused, he put her on his lap and spread her legs, again touching her vagina. Jane squeezed her legs together and defendant eventually stopped. According to Jane, defendant "realized that I knew what he was doing, and . . . told me not to tell anybody and this w[ould] be our secret." Jane also testified that defendant touched her vagina on numerous occasions over the years usually while they were under a blanket or in a dark room watching television or a movie.
She also testified concerning an incident near the pool at home. She was "goofing around" with defendant while the two were alone. Defendant asked her, "['][I]s this what you want to see[?]['] and . . . pulled down his pants, or his bathing suit." Jane saw defendant's penis, was surprised and left the pool area.
Defendant testified on his own behalf. He repeatedly denied ever touching Jane improperly or in a sexual way, or telling her to keep the incident secret. Defendant testified that it was possible Jane saw his penis during horseplay at the pool.
Addressing the recorded conversation, defendant claimed he made the admissions because he had to say something to "appease" Stuart. He had to tell Stuart what he "wanted to hear" or else Stuart would never stop pressing him for an explanation. Defendant lied to Stuart "because [Stuart] was not listening to the truth," i.e., that defendant "never did anything to [Stuart's] daughter."
In Point I, defendant contends the judge's decision to exclude certain evidence was reversible error. In this regard, we recite the testimony adduced at a pre-trial evidentiary hearing.
In the basement of their home, the Does had a female mannequin which Stuart would dress in different holiday garb depending on the season. According to M.M., on occasion, Eddie and Jane would help their father dress the mannequin. Defendant and C.M. testified that the children would occasionally lift the mannequin's dress and look under it. The mannequin was not "anatomically correct."
In the casino room, however, the Does had a female rubber doll that was anatomically correct in that it included simulated female genitalia. The doll also had an open mouth that suggested fellatio. Stuart dressed the doll in a black dress and underwear. C.M. testified that Eddie and Jane would play with the doll, brushing its hair, touching its head, and lifting up its dress and giggling, although none of their behavior concerning the doll was overtly sexual in nature. M.M. testified that Stuart forbade the children from going into the casino room.
The game room in the Doe house contained a video game that included strip poker. A.M., Jr., testified that he observed Eddie playing the game, but none of the other members of the M. family ever saw any of the Does using it. Also in the game room was a "red zone" arcade-type game machine, which required a player to use a claw-like device to grip prizes contained in a glass bin. On the day before the Super Bowl in 2008, the Does held a party for a large number of adults; the red zone machine was stocked with sexually oriented prizes. Defendant testified that he and Stuart purchased the prizes at an adult store. He claimed that Jane, Eddie, and possibly Stuart loaded the machine with these items the night before the party. While Jane, Eddie, M.M., and A.M., Jr., were present in the house during the Super Bowl party, they remained upstairs and were not allowed in the basement.
Defendant proffered this evidence pursuant to N.J.R.E. 404(b), arguing that Jane's exposure to the sexual atmosphere in her house provided an alternate basis, other than the alleged molestation, for the child's knowledge of sexual activity. The judge, however, concluded that the proffered evidence was not relevant, and, pursuant to N.J.R.E. 403, any possible probative value was substantially outweighed by the risk of "undue prejudice, confusing the issues, misleading a [j]ury, undue delay, [and] waste of time." Defendant reiterated the argument when he moved for a new trial, and the judge repeated his conclusions in denying the motion.
Before us, defendant argues that the evidence regarding the mannequin, the anatomically-correct doll, the video strip poker and arcade game was relevant to whether Jane's "knowledge and description of the various alleged sexual acts upon her by [defendant] were the direct result of the alleged sexual assaults or from other extraneous sources." Defendant further contends that the evidence is not barred by the Rape Shield Law, N.J.S.A. 2C:14-7. We conclude that the judge did not abuse his discretion by excluding the evidence.
"The standard for introducing defensive other-crimes evidence is lower than the standard imposed on 'the State when such evidence is used incriminatorily [because] when the defendant is offering that proof exculpatorily, prejudice to the defendant is no longer a factor, and simple relevance to guilt or innocence should suffice as the standard of admissibility.'" State v. Cook, 179 N.J. 533, 566-67 (2004) (alteration in original) (quoting State v. Garfole, 76 N.J. 445, 452-53 (1978)). "Even if defensive other-crimes evidence passes the simple relevancy test," the judge "must analyze the . . . evidence pursuant to N.J.R.E. 403." Ibid. (internal quotation marks omitted). Our review of the judge's decision is "'highly discretionary.'" Id. at 567 (quoting Garfole, supra, 76 N.J. at 457).
Regarding application of the Rape Shield Law to the proffered evidence, the Court has recently stated:
In State v. Budis, 125 N.J. 519 (1991), we articulated a two-step process for determining the admissibility of such evidence. The first step is to "ascertain, apart from the Rape Shield Statute, whether the evidence was relevant to the defense[,]" Budis, supra, 125 N.J. at 532:
"The probative value of the prior acts depends on clear proof that they occurred, that the acts are relevant to a material issue in the case, and that they are necessary to the defense.
When evidence is offered to show a child's knowledge of sexual acts, its relevance also depends on whether the prior abuse closely resembles the acts in question." [Id. at 532-33 (citations omitted).] [State v. P.S., 202 N.J. 232, 261 (2010) (alteration in original).]
Whether viewed specifically as defensive bad act evidence pursuant to N.J.R.E. 404(b), or simply as evidence tending to prove another source of Jane's knowledge regarding sexuality, it is clear that the judge did not abuse his discretion in denying its admission. As he noted, there was little proof that Jane was involved with the sexually-explicit material, and certainly not "'clear proof' that the prior acts occurred." Id. at 262 (quoting Budis, supra, 125 N.J. at 532-33). Nor did the proffered evidence, in any way, "'closely resemble'" the acts Jane alleged defendant committed. Id. at 261 (quoting Budis, supra, 125 N.J. at 532-33). Furthermore, in applying the balancing test required, the judge properly concluded that the probative value of the evidence was "substantially outweighed by the risk of . . . undue prejudice, confusion of issues, . . . misleading the jury[,] . . . undue delay, [and] waste of time[.]" N.J.R.E. 403.
The balance of defendant's appeal centers on allegations of prosecutorial misconduct in one form or another. We review the specific claims.
In August 2007, Jane was diagnosed with leukemia and hospitalized intermittently for varying periods through January 2008. During voir dire, the judge asked prospective jurors if they could fairly decide the case knowing that Jane was hospitalized for reasons unrelated to defendant's actions. On the first day of trial, defense counsel proposed a curative instruction in the event evidence of Jane's hospitalization was revealed. Because Jane recalled events chronologically with reference when she was in the hospital, the prosecutor indicated that evidence of the hospitalizations would be introduced. The parties agreed on a curative charge, and the judge indicated he would provide it to the jurors when a witness mentioned Jane's illness or hospitalization.
Stuart testified without objection to Jane's hospitalization and did not disclose her illness. Afterwards, the judge instructed the jury that "[y]ou've heard some testimony that . . . [Jane] ha[d] been physically ill and ha[d] been hospitalized. You're not to consider that for any purpose in your determination of the case. Her illness was not caused by the defendant, and can play no part in your determination."
The next day, defendant moved for a mistrial, arguing that Stuart's testimony exceeded the limits agreed to by the prosecutor. The judge denied the mistrial motion.
Jane, Dawn, and M.M. were all asked about the hospitalizations and whether defendant visited Jane while she was in the hospital. Defendant did not object to any of the questions. After M.M.'s testimony, the judge again gave the curative instruction.
On cross-examination, the prosecutor asked C.M. whether she visited Jane at the hospital and, if so, how often. Defendant did not object to these questions, but objected shortly thereafter when the prosecutor asked C.M., "[W]hen [Jane] was first diagnosed, did [Dawn] and [Stuart] call you and tell you?" Defendant claimed the use of the word "diagnosed" suggested that Jane suffered from a "kind of sinister, horrible disease." While he had "let it pass the last two or three times," defense counsel was concerned that the prosecutor's repeated use of the "code word" "diagnosed" would inflame the jury with sympathy for Jane. The judge sustained the objection but disagreed that the prosecutor had improperly influenced the jury.
On cross-examination, the prosecutor asked defendant whether he provided support to the Doe family when Jane became ill, whether he visited her at the hospital and, if so, how often. There was no objection to these questions.
As part of his motion for a new trial, defendant argued that the prosecutor's questions deprived him of a fair trial because they served to generate sympathy for Jane. The judge rejected that argument, noting that he had issued a comprehensive curative instruction on the matter and that, in any event, "the prosecutor did not tread on the Court's rulings or advance any arguments prejudicing the defendant."
Defendant repeats the same argument before us. We conclude it lacks sufficient merit to warrant any extensive discussion in this opinion. R. 2:11-3(e)(2). To the extent the prosecutor's questions exceeded the proffered reason for the evidence in the first place, i.e., to provide a chronological landmark for Jane's allegations of abuse, the error was rendered harmless by the judge's repeated curative instructions.
Defendant next contends that the prosecutor improperly commented on his pretrial silence. As already noted, defendant was arrested shortly after the recorded telephone conversation and explained at trial that any admissions he made were in an effort to "appease" Stuart. On cross-examination, the following took place:
[Prosecutor]: Okay. And you also testified about specifics about the taped conversation that we've all heard in court. [Defendant]: Yes. [Prosecutor]: And you first received a copy of that taped conversation in October 2008. [Defendant]: I believe so. [Prosecutor]: In discovery, discovery in this case you received a copy of that.
[Defendant]: Okay. [Prosecutor]: And you had the opportunity to hear it beginning in October of 2008. [Defendant]: I guess so, yes. [Prosecutor]: This is the first time that you are telling your side of the story. [Defendant]: Correct.
Defense counsel objected and argued that the prosecutor was "suggesting that [defendant] had some obligation to talk to law enforcement." Counsel moved for a mistrial. The prosecutor conceded that she may have "phrased it wrong." She intended, instead, to imply that defendant had ample opportunity to think about his explanation as to why he made the recorded admissions.
The judge denied defendant's mistrial motion, but sustained the objection. Defendant declined the judge's offer to give a curative instruction. Defense counsel renewed his objection the following day while making other objections to the prosecutor's summation.
The prosecutor explained that she had not intended to comment on defendant's exercise of his right to remain silent, but that she only wished to imply that defendant had the time and opportunity to "tailor his testimony." The judge rejected defendant's argument, reasoning that the prosecutor's questions were prompted by defendant's trial testimony which was at odds with his recorded admissions. Defendant renewed the argument as part of his new trial motion. The judge again rejected it, reasoning that, because defendant elected to testify, the prosecutor was permitted to challenge his credibility concerning the recording.
The prosecutor's questions were improper. "It is well-settled under federal and state law that a prosecutor may not use a defendant's post-arrest silence against him." State v. Taffaro, 195 N.J. 442, 456 (2008). The prosecutor's proffered explanation of her intent in asking the questions was based upon an equally impermissible purpose. Suggestions that defendant "tailored" his testimony based upon the discovery provided or upon the prior testimony at trial are impermissible. See State v. Roman, 382 N.J. Super. 44, 58 (App. Div. 2005) (cross-examination that highlighted defendant had access to the State's case through discovery was improper), certif. granted, 188 N.J. 219 (2006), certif. dismissed, 189 N.J. 420 (2007); see also State v. Feal, 194 N.J. 293, 298 (2008) (quoting State v. Daniels, 182 N.J. 80, 99 (2004) ("'[A]t no time during cross-examination may the prosecutor reference the defendant's attendance at trial or his ability to hear the testimony of preceding witnesses'".).
However, the questioning was fleeting, the judge sustained defense counsel's objection, and defendant refused the offer of a curative instruction. We are convinced that the few questions posed did not deprive defendant of a fair trial and do not warrant reversal. See Feal, supra, 194 N.J. at 313 (finding no reversible error where the prosecutorial allegation of "'tailoring'" involved the defendant's "back-ped[aling] with respect to his earlier pretrial statement that likely would have convicted him if left unchanged").
Defendant's final argument is that the prosecutor engaged in misconduct during her summation. While we do not condone some of the comments made, we are firmly convinced that they did not serve to deny defendant a fair trial.
Although prosecutors are "expected to assert vigorously the State's case" throughout trial and are given "considerable leeway" to do so in summation, Daniels, supra, 182 N.J. at 96, they have a corresponding duty to pursue justice and "refrain from any conduct lacking in the essentials of fair play." State v. Wakefield, 190 N.J. 397, 437 (2007) (quoting State v. Siciliano, 21 N.J. 249, 262 (1956)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). "A finding of prosecutorial misconduct does not end a reviewing court's inquiry 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) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). The prosecutor is permitted to vigorously rebut specific arguments made by defense counsel. See State v. Mahoney, 188 N.J. 359, 376-77 (2006) (holding "prosecutor's comment . . . placed an unforgiving and harsh glare on . . . defense" but were permissible), cert. denied sub nom., Mahoney v. New Jersey, 549 U.S. 995, 127 S. Ct. 507, 166 L. Ed. 2d 368 (2006); see also State v. Morais, 359 N.J. Super. 123, 131 (App. Div.) (holding prosecutor may respond to defense counsel's arguments as long as comments "do not stray beyond the evidence"), certif. denied, 177 N.J. 572 (2003).
"Whether particular prosecutorial efforts can be tolerated as vigorous advocacy or must be condemned as misconduct is often a difficult determination to make. In every instance, the performance must be evaluated in the context of the entire trial." State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). Also relevant to our review is a defendant's failure to object to the prosecutor's remarks at the time they were made because this "deprives the court of an opportunity to take curative action" and suggests that defendant did not find the remarks prejudicial. Frost, supra, 158 N.J. at 84. Defendant asserts five specific instances of misconduct by the prosecutor during her summation, only two of which require comment.
In Point IV(C), defendant contends that the prosecutor's references to him as a "mass murderer," "serial killer," "Dr. Jekyll and Mr. Hyde," and pedophile deprived him of his right to a fair trial. The trial court rejected this argument, essentially determining that the disputed comments, when reviewed in the context of both summations, were not improper.
Defendant presented testimony from fifteen character witnesses. During summation, defense counsel argued that all of them testified defendant was "honest, . . . trustworthy, [and] a man of integrity." Also, during summation, counsel noted that in the recording, defendant admitted to "touching [Jane's] butt" and to having a "fascination." Counsel characterized Stuart as a "my way or the highway guy," arguing that defendant said those things in order to stop Stuart's continued interrogation.
In her summation, the prosecutor responded:
Is [Stuart] so overbearing . . . that he [(defendant)] would . . . admit to pedophilia, I mean, basically that's what he's admitting to, to touching a child, because he wanted to appease [Stuart]? He's so afraid of [Stuart], he's physically afraid of [Stuart] over the phone, mind you, okay, over the phone, so physically afraid of [Stuart], that instead of just saying no, no, no, I didn't do it, I didn't touch your daughter, he's so afraid of him that he admits to touching his daughter? It just doesn't make sense.
Later, the prosecutor returned to the theme:
In this tape he's talking about, trying to explain away, not trying to appease [Stuart], he's trying to help himself, the same way he tried to help himself out here. He told you flat out he lied to [Stuart], admitted basically to pedophilia, to tell Steve what he wanted to hear to appease him, to basically get out from under.
Defendant did not object to these comments.
The prosecutor rebutted the character testimony as follows:
[Y]ou had a lot of character witnesses come in here, [testifying] that he's truthful, honest, has a lot of integrity. Neighbors, somebody he was always honest and borrowing the lawnmower, right, that's how well these people know him. That's how well they know him. You always see on TV on the news there will be like some mass murderer or serial killer, and then they'll interview the little old lady who's the neighbor, and she'll say --Defense counsel objected, noting "[t]his is not a murder case, there are no facts like this in the case." The judge overruled the objection, stating that the comments were "some sort of analogy" permissible on summation. The prosecutor then continued:
I don't know, he always seemed like a nice boy to me, always shoveled my snow or raked my leaves. But they don't know because these are secret crimes.
You know, we're talking about . . . Dr. Jekyll and Mr. Hyde, but these are secret crimes. He had this public persona and his secret persona. The persona that only . . . [Jane] knew. Because I submit to you, that but for [defendant] molesting . . . [Jane], [Stuart and Dawn Doe] . . . would have been the first people up here to support him and say what a great guy he is and how honest and trustworthy and full of integrity [he is], until they realized that that character does not exist. But they found it out the hard way.
Defendant did not renew his objection to these comments.
"Pedophilia" is defined as "an abnormal attraction to children by an adult for sexual purposes." Stedman's Medical Dictionary 1316 (26th ed. 1995). While denying that he obtained any sexual gratification from touching Jane's private parts, defendant himself used the word "fascination" during the recorded conversation in describing why he touched the child. The prosecutor should not have resorted to using a term that implies a complex, psychiatric diagnosis. But, viewed in context, i.e., the prosecutor was simply arguing that defendant offered an incredible excuse for making such a damning admission, the comments were not plain error. R. 2:10-2.
"Derogatory name calling by a prosecutor constitutes misconduct." State v. Darrian, 255 N.J. Super. 435, 458 (App. Div.), certif. denied, 130 N.J. 13 (1992). In rebutting the testimony of the character witnesses and defense counsel's contention that defendant was "honest . . . trustworthy . . . [and] a man of integrity," the prosecutor sought to explain how those witnesses, like the Does, assumed defendant would not commit a crime. Her choice of words should have been more circumspect, but we find no reversible error.
In Point IV(E), defendant contends that the prosecutor improperly argued that a conviction was the only just result. The prosecutor's statements were improper.
In her opening statement, the prosecutor told the jury that "[t]his is a case about betrayal and accountability," and argued that defendant "needs to be held accountable for what he did." During her summation, the prosecutor repeated those words. At the end of her presentation, after playing defendant's taped admissions, the prosecutor said, "Don't let him get away with it. It's about accountability. Hold him accountable. And that, ladies and gentlemen, will be justice."
Defendant lodged no objection. On appeal, defendant asserts that the comments led the jury to believe "that the sole 'just' result [wa]s a conviction."
It is improper for a prosecutor to imply that "jurors will violate their oaths if they fail to convict." State v. Pennington, 119 N.J. 547, 576 (1990). In State v. Hawk, 327 N.J. Super. 276, 282 (App. Div. 2000) (citing State v. Rose, 112 N.J. 454, 523 (1988)), we noted suggestions that the jury should "send a message" through its verdict, or "'hold [defendant] . . . accountable' . . . were inappropriate, inflammatory and constitute[d] misconduct."
However, in Hawk, the prosecutor's comments were initially made in his opening statement and provoked a mistrial motion. Id. at 280. Although the judge denied that request, he gave the jury a strong curative charge that rebuked the prosecutor. Ibid. Nonetheless, the prosecutor repeated his offensive comments several more times in summation in a blatant appeal to the jury's passions. Id. at 282. We noted that had the summation comments "been the only instance of prosecutorial misconduct," the judge's subsequent curative instruction might have been sufficient. Id. at 283. We also took note of the additional improper comments made by the prosecutor regarding the effect an acquittal would have upon the testifying police officers. Id. at 285. In short, the offending conduct in Hawk was repetitive, egregious, and raised "the very real likelihood of denying defendant a fair trial." Ibid.
In this case, the prosecutor's comments were improper and should not have been made. However, they occurred very briefly at the end of a lengthy summation, there was no objection, and, hence, the judge was not presented with an opportunity to give a curative charge. In his closing instructions, however, the judge focused the jury's attention upon their duty to decide the case on the evidence presented without passion or prejudice. The proof of defendant's guilt was overwhelming, and "[w]hen all of the offending conduct is considered against the strength of the State's evidence, we cannot conclude that the prosecutor's tactics deprived defendant of a verdict that fairly reflected the evidence." Roman, supra, 382 N.J. Super. at 61.
The remaining arguments raised in Point V are without sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). The prosecutor never suggested that the defense witnesses were "coached"; she only argued that the State's witnesses were not. Nor did she comment on defendant's right to remain silent when she said that she could not anticipate "what their defense was going to be." The comment did not imply that defendant had to testify or present a defense because at that point, defendant had already testified and called other witnesses. In commenting on defendant's explanation for the recorded admissions, the prosecutor noted: "If someone accused you of molesting a child, especially one that you loved and cared for, the reasonable thing to do is say I didn't do that, not however many months later trying to explain away your words . . . . That's convenient. He's trying to get out from under." This was not a comment on defendant's right to remain silent, but rather was fair comment on the credibility of defendant's explanation.
Lastly, defendant claims that the prosecutor improperly "asked the
jury to consider the testimony of [Eddie]" who was never called as a
witness. Shortly before summations, defendant sought a Clawans charge
based on the State's failure to call Eddie as a witness.*fn2
After some argument, defendant withdrew the request. In
summation, defense counsel noted, "[W]e've heard from everybody in
this movie theater . . . but we didn't hear from [Eddie] at all. . . .
I don't know why, but all I know is that's part of the case, you
haven't heard it. Strange." In her summation, the prosecutor explained
that she "did not parade another child in here to talk about what
happened in that movie theater, [she] did not bring another child into
this case." It was not a comment that urged the jury to consider the
testimony of a non-witness.
Affirmed. We remand the matter to the trial judge to enter an amended judgment of conviction reflecting that the sentence imposed on defendant's lewdness conviction does not include aperiod of parole ineligibility pursuant to NERA. We do not retain jurisdiction.