August 18, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RASOOL MCCRIMMON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-01-0054.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: October 20, 2010
Before Judges Cuff, Fisher and Sapp-Peterson.
On July 17, 2004, Darius Davis was shot four times in the back on a street in Newark. A jury found defendant Rasool McCrimmon guilty of first degree knowing and purposeful murder, N.J.S.A. 2C:11-3a(1) and (2) (Count One); third degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b (Count Two); and second degree possession of a weapon for an unlawful purpose (Count Three), N.J.S.A. 2C:39-4a. After merging Count Three with Count One, the judge imposed a fifty-year term of imprisonment subject to a No Early Release Act*fn1 85% parole ineligibility term. On Count Two, the judge imposed a five-year term concurrent term of imprisonment. The judge also imposed the appropriate fees, penalties and assessments.
The facts are relatively straightforward. On the morning of July 17, 2004, Darius Davis, known as Kojak, had his hair cut by Bowman "Bomber" Caldwell at Bombers Unisex Salon on South 8th Street in Newark. Willard Lester was in the shop at the same time, as were several other people, including Idrissa Wilson and two young girls about eight or nine years old. After Bomber Caldwell cut Kojak's hair, Kojak went into the bathroom. A man described as a light-skinned black man, identified by Caldwell and Lester as defendant, entered the shop looking for Kojak. Informed that he was in the bathroom, defendant went to find Kojak. Caldwell and Idrissa Wilson heard defendant tell Kojak they had something to talk about and the two men left the shop, although Wilson was unable to identify defendant as the man that left the shop with Kojak.
Within minutes, Lester, who was sitting near the door and front window, exclaimed that Kojak had been or was in the course of being shot. Lester described Kojak walking up the street trying to return to Bomber's shop. As he reached the top step, Kojak collapsed.
Bomber Caldwell did not witness the shooting or Kojak's progress up the street. When he heard Lester exclaim that Kojak had been shot, he hurried to put the young girls in a back room away from harm. Then, he tried to call for an ambulance. He encountered the victim as he reached the top step and porch of his shop.
Kojak was pronounced dead at the hospital. The medical examiner, Dr. Wayne Wilson, testified that the victim died of four perforating gunshot wounds: one in and out of his right shoulder; two in and out of his right chest; and one in the lower left side of his back. All entered through the back and exited through the front of the body. The gunshots to the right chest broke the right first, third and fifth ribs, and passed through the right lung. These wounds caused the right lung to collapse and a large amount of blood to accumulate in the right chest cavity. The gunshot to the left lower back perforated the left kidney and renal artery, and the muscle below the seventh rib. It, too, caused a large amount of bleeding into the abdominal cavity. The medical examiner opined that the victim may have been slightly bent over when the bullet in the left lower back entered his body. He was not shot at close range. The muzzle of the gun was no less than eighteen inches to two feet from the victim when the shots were fired. The medical examiner could not determine the farthest distance between the muzzle of the gun and the victim when the shots were fired.
Detectives at the crime scene were able to determine that six shots were fired. Two shots were fired into the victim's truck from the passenger side of defendant's vehicle. None of those shots struck the victim. The other four shots struck the victim in the back as he left the area of his truck and tried to flee in the direction of Bomber Caldwell's shop. Ballistic examination of the bullets confirmed that all of the shots were fired from a single gun.
The crime scene observations of the detectives confirmed Lester's July 14 and August 6 statements and his grand jury testimony, except that Lester stated at one time that defendant fired at Kojak from the driver's side of the truck. In his statements and in his grand jury testimony, Lester also stated that Kojak and defendant left the shop together and that he saw defendant fire at least six shots. He also testified that he observed defendant walk calmly across the street, enter a black sport car, and slowly drive away from the scene. He also provided detectives with a partial license plate number. Neither the car nor the gun were ever located.
At trial, Lester was less forthcoming. He testified that Kojak was in Bomber's shop and that he saw defendant enter the shop. He testified that he did not hear defendant state that Kojak and he needed to talk. He related that both left the shop but not together. Lester testified that he did not see the two men meet until they were further down the street and close to the victim's truck. He did identify defendant, however, as the shooter. As a result of the inconsistencies in Lester's testimony, after a Gross*fn2 hearing, the trial judge permitted several portions of Lester's July and August statements to be introduced in evidence.
On appeal, defendant raises the following arguments:
APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED BY THE PROSECUTOR'S IMPROPER CLOSING ARGUMENTS.
I. The Prosecutor's Closing Argument that Willard Lester Feared Mr. McCrimmon and that His Incredible Testimony was Caused by this Fear Denied Appellant a Fair Trial.
II. The Prosecutor's Unfounded Comments Accusing the Defendant's Expert of Bias Denied Appellant a Fair Trial.
III. The Prosecutor's Personally Vouching for Willard Lester's Credibility and the Prosecutor Testifying Concerning How the Killing Occurred Denied Appellant a Fair Trial.
APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED BY THE STATE'S LOSS OF THE DECEDENT'S CLOTHING.
APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED BY THE COURT'S FAILURE TO EXCLUDE BOWMAN CALDWELL'S IN-COURT AND OUT-OF-COURT IDENTIFICATIONS.
THE INDICTMENT MUST BE DISMISSED AND THE CONVICTION VACATED BECAUSE THE STATE'S PRESENTATION TO THE GRAND JURY DENIED THE DEFENDANT HIS RIGHTS UNDER THE CONSTITUTION OF THE UNITED STATES AND UNDER THE NEW JERSEY CONSTITUTION.
THE COURT'S FAILURE TO PROPERLY QUESTION MR. ELPHICK DURING VOIR DIRE VIOLATED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO AN IMPARTIAL JURY.
THE JURY INSTRUCTION WAS INADEQUATE AND DEFECTIVE AND DENIED APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
I. The Court's Final Instructions Addressing the Prosecutor's Remarks in Closing about Lester being in Fear Were Inadequate and Exacerbated the Harm done by the Prosecutor's Misconduct.
II. The Court's Final Instructions were Defective in Failing to Address the Prosecutor's Misconduct in Accusing the Defendant's Expert of Bias [Not Raised Below].
III. The Court's Final Instruction was Defective in Failing to Properly Instruct the Jury in How to Assess Bowman Caldwell's Out-of-Court, and In-Court Identifications. [Not Raised Below].
In his summation, the prosecutor addressed the many inconsistencies in Lester's testimony and fashioned an argument to convince the jury that Lester was a credible witness in spite of his varying accounts of the shooting. The central issue in this appeal is whether the prosecutor injected the issue of Lester's fear of defendant into the trial during his summation. Defendant argues that the prosecutor's statements about Lester's testimony conveyed to the jury that Lester feared defendant and denied him a fair trial.
This argument requires some context. At the commencement of trial, the judge and defense counsel learned that Lester had been shot in March 2005. His assailant was never identified, much less arrested and prosecuted. At the commencement of the trial, the prosecutor provided defense counsel with information about the investigation of the March 2005 shooting of Lester. The jury never learned that Lester had been shot in March 2005.
In addition, Lester informed the prosecutor before the trial that someone approached him and offered him money not to testify. Lester could not identify the person. This too was disclosed to defense counsel. The jury never learned about this incident.
Lester never testified that he feared defendant or was afraid of him. He was a reluctant witness. He clearly backtracked from some of the statements he made on the day of and soon after the July 17, 2004 shooting. At one point, the prosecutor asked Lester directly whether he was afraid. Defense counsel lodged an immediate objection, and an extended hearing out of the presence of the jury occurred. At the conclusion of the hearing, the prosecutor stated he would withdraw the question and neither party approached the issue of whether Lester was concerned that his testimony placed him in fear for his personal safety.
The prosecutor devoted a considerable portion of his summation to the testimony of Willard Lester. His summation followed defense counsel's summation which also focused on the testimony of Willard Lester. In fact, defense counsel argued that "this is a case without a gun, without any DNA, without any fingerprints, without anything other than the testimony of one individual, and that individual is Willard Lester." Defense counsel proceeded to argue that, "Willard Lester . . . is not telling you the truth . . . ." Defense counsel then proceeded to identify the many differences between Lester's initial statements on July 17 and August 4, 2004, his grand jury testimony in which he first mentioned that the victim was in his truck when the shooting started, and his trial testimony. He argued that the forensic evidence contradicted Lester's grand jury testimony that defendant fired two shots through the driver's side of the victim's truck. He challenged the jury to ask themselves, "How much contradiction can there be?" and "How much lack of credibility can one person have?"
During his summation, the prosecutor used terms suggesting emotional stress, including, "pressure," "courage," "tension," "concern about himself," "torture," "suffer," "safe," and "protect himself" nineteen times during his comments on Lester's testimony. Defendant contends these comments were improper and contrary to the evidence, and the trial judge issued inadequate instructions to the jury at the time he addressed an objection or in his final instructions to cure the harm caused by the prosecutor. We address each comment.
First, defendant contests the prosecutor's use of the term "pressure" in describing Lester's testimony. The word was used in discussing Lester's grand jury testimony. The prosecutor stated: "The defendant is not at grand jury. So when he testifies there it's just 23 people such as yourselves, the Prosecutor and the clerk, and there's no pressure of him having to sit in front of the man that he says committed a murder and testify." (emphasis added). Defense counsel immediately objected stating there was no evidence that defendant was under pressure to testify. The trial judge overruled the objection because he did not think it objectionable to highlight the difference between testifying at a proceeding where the defendant is not present and a trial when a witness must confront the accused. He cautioned the prosecutor, however, not to use the word "pressure" in the future.
The prosecutor used the term "pressure" again, but not in reference to Lester's testimony. He simply noted that a trial produces pressure on all involved in the trial that causes some people to make mistakes. Defense counsel did not object to this remark.
The prosecutor then proceeded to review the forensic evidence and the testimony of Lester and Caldwell to establish that much of the evidence was uncontested. After noting that Lester identified defendant from a photo array and Caldwell identified defendant from a single photo, the prosecutor noted that police then had a suspect and defendant surrendered to police. At this point, the prosecutor stated:
Why would anyone go to a barbershop in the neighborhood he grew up in, shoot someone in broad daylight from a view he had to have known that he could be seen from that doorway, and shoot the man in broad daylight, and then drive away nonchalantly like nothing happened? Because he does not expect anyone to have the courage to come forward and testify against him as to what they say. (emphasis added).
Defense counsel immediately objected. The trial judge rejected defendant's argument that the word "courage" suggested someone had been intimidated but barred the prosecutor from stating or suggesting that defendant had threatened anyone.
The prosecutor continued with his summation. He stated:
So what we have is a broad daylight murder. Broad daylight. No masks, no gloves, no stealth; didn't sneak up on him. Broad daylight.
If you commit a murder in broad daylight in front of people you know, I think it's fair to infer that what you count on is that no one's going to want to testify against you. (emphasis added).
Defense counsel made the same objection; the judge overruled the objection.
Soon thereafter, the prosecutor commented on the testimony of Idrissa Wilson. She had testified only that a man came into Bomber's shop looking for the victim and they left together. She did not identify defendant as the man looking for the victim. She also heard Lester speak excitedly. The prosecutor commented that you could see and hear the tension she felt about being a witness. He said, "I think you could see it on her face and hear it in her voice, the tension that she felt being here." He continued: "This is not an easy thing to come forward and give any information about a murder that occurred in broad daylight." Defense counsel did not object to these remarks.
Thereafter, the prosecutor noted that Lester "doesn't even want to admit he knows what the color of the truck was anymore" and proceeded to discuss recanting witnesses. He said:
And that goes to the credibility, the weight, what weight do you give his testimony? The statement that he gave when he was excited on July 17th about what happened, or what he says later on after a year and a half of having this weigh on his mind? He doesn't even want to admit he knows what the color of the truck was anymore.
Ladies and gentlemen, witnesses recant. That's what they do. They recant. It's a word you're going to hear in the Judge's instructions. Recant means you take back what you said before under oath. They do that for many reasons.
Use your common sense. Use your common knowledge of how people act, and you can figure out why someone like Willard Lester would do that. (emphasis added).
Defense counsel did not object to this comment at trial. Instead, the prosecutor continued to describe the events of July 17, 2004, and noted how the victim had placed his hand on Lester's shoulder before he collapsed and died. The prosecutor stated:
That was a powerful moment for Mr. Lester because he knows that was the last contact that Darius Davis had with us, the living. It was the last contact, the man touched his shoulder. A year and a half later, this is a ghostly touch. It's faded. Not as powerful as it was then, but it's still there. That touch didn't just touch his shoulder. That's the touch that went straight through Mr. Lester's soul; why he had to tell the truth that day of what he saw. He could not let their friend just die alone. That touch gave him the courage to tell that truth about what happened. (emphasis added).
The prosecutor continued: "But time's gone by. Now the man is sitting right across from him, and he doesn't remember that touch so much. It's not as fresh in his mind. It's not like it was that day." (emphasis added). Although defendant now contends this remark implied Lester had something to fear from defendant; defense counsel did not object to the comment at the time.
However, defense counsel did object shortly thereafter when the prosecutor made the following comment in the context of Caldwell's and Lester's identifications of defendant:
Ladies and gentlemen, I would just submit that this was a broad daylight murder, 120 feet from [Caldwell's] barbershop, and [Caldwell] works there. That's his shop every day. He's not going anywhere. He said what he could say. [Defendant's] the man that came in and asked for [the victim]. Bowman Caldwell is telling you, in the way he can, that he is the man that came in and asked for [the victim]. There's no doubt he knew him. He is the man. That's the man. He was there. Willard Lester watched it happen because he was in that seat that he sits in where he chills, hangs out in the barbershop. He helps. He sweeps up sometimes. That's his hangout. He's comfortable there. But something excited him very terribly, and he threw caution to the wind. He wasn't concerned about himself when he gave this statement. He was concerned about telling the police what he saw. (emphasis added).
Defense counsel immediately objected to this comment, but the trial judge overruled the objection. The prosecutor then added: "And that takes courage." Defense counsel did not object to this added comment.
Thereafter, the prosecutor highlighted portions of Lester's grand jury testimony. The prosecutor discussed the fact Lester told the grand jury certain details about the victim's truck and provided an illustration of Lester's recantation of his grand jury testimony. The prosecutor proceeded to review the sequence of events on the day of the murder, the defense expert's opinions, the ballistics evidence, and Lester's testimony. He likened the evidence as different pieces of a puzzle, that when put together, form a complete picture. The prosecutor then noted:
Because if the picture doesn't make sense, then something's wrong with the picture.
Now, where doesn't this picture make sense? The picture doesn't make sense that Willard Lester would come up on the stand and say I didn't even know [the victim] had a blue Jeep. I thought he had a white Jeep. That doesn't make sense. Something's going on. (emphasis added).
Despite defendant now insisting this comment furthered the prosecutor's "fear" theme during summation, defense counsel did not object at the time.
The prosecutor continued:
There's some other mechanism. And it's not that Willard Lester is a liar. Yeah, that's a lie. Because if he knew it was blue, it was a lie. But this is a trial, and a trial gets to the truth. And you have tools to get you the truth, and the Judge gives those tools to you in the form of the law because the law tells you how to take that testimony that doesn't even recognize that [the victim] has the blue Jeep, compare it to all the things he said before, and how to weigh that evidence. That's what I mean when I say witnesses recant. They do. But the law knows that, and the law will give you the tools to examine that, and weigh it, and figure out what happened.
Willard Lester, ladies and gentlemen, is not a bad man. He is not a bad man. He is not a liar. He's just an ordinary guy that likes to hang out at Bomber's and not bother no one, and he was thrust into these circumstances. And he couldn't help himself because at that moment he wasn't thinking about himself, he was thinking about [the victim]. Now he's thinking about Willard Lester, and you see it on his face. (emphasis added).
Defense counsel objected again. The trial judge noted the objection and permitted the prosecutor to continue:
When Willard Lester testified . . . you had the ability, you had the front row seats, you saw his face. You saw the torture that was written on that face. That man was suffering, and his suffering was no more evident than at the point when he started making up a story about, well, I didn't see it; someone told me. It was torture because the man is here now. It's the trial, and he has to point his finger at the man sitting right there in the black shirt and say that's the guy I saw kill [the victim] in broad daylight in front of Bomber's Barbershop, the place where I like to hang out every day. He suffered through that testimony. It was torture. (emphasis added).
Defendant characterizes this segment of the summation as the prosecutor "reemphasizing the 'fear' argument in more dramatic terms," yet defense counsel did not object to the latter portion of this statement at trial.
The prosecutor then discussed defense counsel's "tough" cross-examination of Lester and how Lester never wavered from his position that defendant shot the victim. The prosecutor added:
Another interesting thing, no matter how badly, how badly [defense counsel] is able to get Mr. Willard Lester to recant, to retreat, to say I didn't see that, someone told me that; no matter how badly, when you put his statements in front of him, and even the grand jury, he always came back and said, well, that was true. He's torn. He, obviously, does not want to be the one sitting in front of [defendant] and saying you're the guy that did it . . . . (emphasis added).
Again, defense counsel objected, and Judge McCormack noted the objection, but allowed the prosecutor to proceed.
Later, the prosecutor commented on Lester's in-court identification of defendant. He stated:
No matter what, that was one thing [Lester] could not say, he could not bring himself to deny that the man he saw shooting [the victim] was right there. That, he couldn't back away from. He struggled, and he probably wanted to, but that he couldn't do. (emphasis added).
On appeal, defendant insists this remark demonstrates the prosecutor's argument "that when Lester identified the defendant as the shooter he was nevertheless wracked by fear." Defense counsel did not object to this comment at trial. Further, the prosecutor immediately followed this remark by stating, "This is when I say, you know, being on trial is hard. It is hard."
However, defense counsel did object to the following comment, which the prosecutor made soon thereafter:
See now we get into the areas where Willard Lester can recant, where he can retreat and do it safely because he's not betraying his core belief as to who killed Darius Davis. And he, [defense counsel], characterized it as he was toying with him, and in a way he was because now he's splitting hairs. I didn't see them walk out together. One was already out and one was behind. But does that mean they're not walking out together? Maybe in his mind he's telegraphing, and I think he's telegraphing to the defendant. That's my belief, that he wants him to know I'm not the one, I'm not ratting you out here.
I'm trying to -- that's what I think is going on in his mind. (emphasis added).
The trial judge sustained the objection and addressed the prosecutor:
I think you've crossed the line at this point. You're now attributing to the mental process of a particular witness, Mr. Lester, as opposed to saying to the jury, as I permitted, is it logical. You can draw the inference that someone may be nervous, or somebody might be fearful. Now you're saying, as I understand the comments, that Mr. Lester was telegraphing to him. Mr. Lester was saying I'm not ratting you out. So I'll sustain the objection.
The judge also issued the following curative instruction:
Ladies and gentlemen, the argument or comments being advanced by the Prosecutor as to what the state of mind of Mr. Lester was when he was testifying, or what he has referred to, was trying to communicate, that is improper comment. It's not based in the evidence, and that part of the summation about what Mr. Lester may have been trying to communicate to [defendant] is not something that you should consider in your deliberations. All right? That part of the summation that just preceded my remarks and just preceded the sidebar was inappropriate.
The prosecutor continued his summation by making several remarks that Lester "retreated" in his testimony while on the witness stand. The prosecutor surmised:
We know he's retreating. We know he's recanting. But he's saying I must have felt I was telling the truth when I said it. He's in a different position now. He's not at the police station surrounded by police officers where he's safe. He's not in grand jury. (emphasis added).
Immediately, defense counsel objected to this remark. The trial judge responded with the following instruction: "Any reference to whether a person would be safe while they're in the police station as opposed to safe in the courtroom is inappropriate comment. I'm asking you, ladies and gentlemen, to please disregard that comment." Nevertheless, the prosecutor continued:
[Lester] was at the police station when he gave these statements, ladies and gentlemen. You can decide for yourselves the trustworthiness of those statements and what was going on his mind when he gave those statements as opposed to when he has to testify on a witness stand at trial. (emphasis added).
Defense counsel did not object at trial to the scope or adequacy of the judge's instruction or to the prosecutor's comments after the curative instruction.
The prosecutor continued to emphasize Lester's "retreat" during his trial testimony:
I think you can infer from the testimony, and later on I'll show you where you can infer from Willard Lester's own testimony at this point he's really trying to cover up. He's trying to retreat. He's trying to back away from what he said he saw. It was the whole scene, if you recall when [defense counsel] said who told you, and he must have said 50 times, who told me, who told me. He couldn't -- he didn't just come out and say it. It had to be pulled out of him. And in the end, if you recall the testimony, he couldn't even say . . . his name. He said B told me. He couldn't even say Bomber's name. He said B. He must have said B four times. And [defense counsel] had to ask him who are you talking about, and he finally said Bomber. The man was torn up. The man was torn up, and he tried to cover. He tried to duck. He tried to recant. He tried to protect himself. But in the end he never backed off. He never backed off of who he said did it. (emphasis added).
Defense counsel objected to this final remark, but the judge permitted the prosecutor to proceed.
The prosecutor concluded his summation, and the trial judge conducted a charge conference with counsel. Defense counsel initially advocated for an abbreviated charge on a recanting witness, so as to avoid any suggestion fear played a role in the consistency of Lester's statements, but then clarified that a prior contradictory charge only would be sufficient. The prosecutor characterized Lester's testimony as "clearly a recantation," and the judge agreed. The judge then determined an abbreviated charge on witness recantation would be appropriate.
Thereafter, the trial judge proposed the following charge:
Counsel have, during summations, suggested reasons for witnesses testifying as they did at this trial. Counsel's inferred or suggested reasons are mere argument and not evidence. It is within your -- meaning the jury obviously -- sole province as judges of the facts to assess the credibility or believability of a witness's trial testimony.
Defense counsel found this proposed charge unacceptable. He argued that despite previous rulings that evidence of Lester's fear would not be considered at trial, the prosecutor nevertheless argued during summation that Lester "was under pressure[,] that it took courage to testify[,] . . . that there were recantations[,] . . . that [he] was suffering, . . . was being tortured . . . or that he felt tortured in testifying[,] . . . [and] was trying to protect himself in response." Thus, defense counsel moved for a mistrial, or in the alternative, requested the judge consider the following instruction:
The State has suggested that the witness, Willard Lester, was afraid or fearful, and that fear has caused him to change the statements he made to the police on July 17th, 2004, and August 4th, 2004. I charge you specifically that there is no evidence that the witness was fearful or afraid when he testified in Court. And, further, there is no evidence that fear influenced his testimony in any way whatsoever. You should not consider fear or intimidation in any way in assessing the credibility of Willard Lester. There is no evidence in this case that fear or intimidation affected his testimony in any way, shape or form.
The trial judge denied the motion for a mistrial, and explained that his proposed charge was fair and appropriate. "To go further and to get into the substance, if you will, of the issues [concerning Lester's fear] may highlight them and actually have an adverse effect." Therefore, when the judge charged the jury, he simply provided the previously-stated proposed abbreviated charge to address the concerns of counsel during the summation.
Among other things, the judge also charged the jury with respect to Lester's prior statements to the police and the grand jury and in accordance with the Model Jury Charge (Criminal), "Prior Contradictory Statements of Witnesses" (1994). In deciding whether Lester's prior statements reflected the truth, the judge instructed the jury to "consider the extent of the inconsistency or omission and the importance or lack of importance of the inconsistency or omission on the overall testimony of the witness as bearing on his credibility." Additionally, the judge noted: "You may consider such factors as to where and when the prior statement or omission occurred, and the reasons, if any, if given." Once again in accordance with the model charge, the judge added:
The extent to which such inconsistencies or omissions reflect the truth is for you to determine. Consider their materiality and relationship to his entire testimony and all of the evidence in the case; when, where, and the circumstances under which they were said or omitted, and whether the reason he gave you therefor appear to be believable and logical. (emphasis added).
Defense counsel indicated during the charge conference that a charge on Lester's prior contradictory statements would be appropriate, and never suggested the judge stray from the model charge. Nonetheless, defendant now claims on appeal that the instruction "licensed consideration of an impermissible argument about a matter of paramount importance in the trial, why Lester's testimony varied from his out of court statements."
Prosecutors are afforded wide latitude in presenting summations. State v. DiFrisco, 137 N.J. 434, 474 (1994). Yet, "while a prosecutor must advocate a position vigorously, there are boundaries to such conduct." State v. Hawk, 327 N.J. Super. 276, 281 (App. Div. 2000). A prosecutor is obligated "not to obtain convictions, but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987). Further, it is as much the prosecutor's 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.'" State v. Farrell, 61 N.J. 99, 105 (1972) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)). The prosecutor must ensure the comments in summation "are reasonably related to the scope of the evidence presented." State v. Timmendequas, 161 N.J. 515, 587 (1999).
In evaluating whether prosecutorial misconduct requires reversal, this court should determine whether the conduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citing Ramseur, supra, 106 N.J. at 322). In other words, "'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.'" State v. Wakefield, 190 N.J. 397, 438 (2007) (quoting State v. Smith, 167 N.J. 158, 181-82 (2001)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Prejudice to the defendant is measured by considering "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered remarks stricken from the record and instructed the jury to disregard them." Ramseur, supra, 106 N.J. at 322-23.
Usually, if no objection is made during summation, then the remarks will not be considered prejudicial. Id. at 323. That is, if the defendant did not raise the issue of the prosecutor's remarks at trial, this court reviews the objection under a "plain error" standard. R. 2:10-2. A corollary to this rule is that the failure to object can be interpreted to mean defense counsel did not consider the error to be significant in the context of the trial. State v. Macon, 57 N.J. 325, 333 (1971); see also State v. Ingram, 196 N.J. 23, 42 (2008). However, in particularly troubling circumstances, the prosecutor's comments may rise to the level of plain error, regardless of whether the defense objects. See, e.g., State v. Goode, 278 N.J. Super. 85, 89-92 (App. Div. 1994) (where, among other things, the prosecutor improperly and persistently reiterated a theme "that the jurors, through their participation in this matter, could alleviate in some manner the narcotics problem threatening our society"); State v. Sherman, 230 N.J. Super. 10, 19 (App. Div. 1988) (noting that the prosecutor's improper remarks during summation "converted the proceedings from a trial of issues by which a fact-finder may weigh evidence fairly into a vehicle for exacting personal revenge upon defense counsel").
Further, "when weighing the effectiveness of curative instructions, a reviewing court should give equal deference to the determination of the trial court," and focus "on the capacity of the offending [remark] to lead to a verdict that could not otherwise be justly reached." State v. Winter, 96 N.J. 640, 647 (1984). In instances where individual remarks by the prosecutor "are only slightly improper," "a general charge may serve to ameliorate potential prejudice" caused by the remarks. Frost, supra, 158 N.J. at 86-87. Nevertheless, there may be cases where the cumulative effect of several prosecutorial improprieties may not be sufficiently cured by a single instruction. Id. at 87.
To assess the impact of a statement challenged as inappropriate, we must read the summation in its entirety. See Timmendequas, supra, 161 N.J. at 575 (explaining evaluation of prosecutorial misconduct in a summation requires a consideration of "the tenor of the trial . . . ."). To do otherwise, would allow consideration of a statement out-of-context, which could lead to a misapprehension of the meaning and impact of the statement.
Finally, the decision to declare a mistrial "is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." Winter, supra, 96 N.J. at 646-47. Therefore, this court reviews the decision under an abuse of discretion standard. Id. at 647.
Read in its entirety, we conclude that the prosecutor did not interject in this record that Lester or any other witness had been or was then threatened by defendant. As noted, the jury never learned that Lester had been shot multiple times in March 2005. The jury never learned that some unknown person sought to dissuade Lester from testifying. The jury did see and hear a witness who reluctantly implicated defendant in the murder of an acquaintance. The prosecutor was simply stating the obvious, that Lester retreated from his earlier statements and grand jury testimony, and that it is difficult for some people to accuse a person of any wrongdoing, much less of murder, to their face. The prosecutor also emphasized the obvious when he commented that some witnesses wilt under cross-examination.
We review a cold record, but Lester's discomfort on the witness stand was palpable. It is in this context that the prosecutor used the words "tension," "struggle," and "torture." None of the comments singly or in combination conveyed to the jury that Lester feared defendant would harm him. We, therefore, conclude that none of the cited remarks in the prosecutor's summation, singly or in combination, deprived defendant of a fair trial.
We are also not persuaded that the prosecutor ridiculed or disparaged defendant's ballistic expert, John Cayton. To be sure, a prosecutor cannot "'cast unjustified aspersions on the defense or defense counsel,'" State v. Jenewicz, 193 N.J. 440, 471 (2008) (quoting State v. Nelson, 173 N.J. 417, 461 (2002)); however, none of the prosecutor's criticisms of defendant's expert rise to the level of requiring a new trial.
The prosecutor argued that Cayton was being "cute," and the prosecutor suggested that Cayton didn't interview the medical examiner because "[m]aybe he really didn't want to know." These remarks suggest that defendant's expert was trying to construct a defense without reference to the facts. Such comments identify weaknesses in a position and are legitimate comments. See ibid. (commenting that identifying and emphasizing weaknesses in an exam are legitimate comments). They do not suggest that the expert is a partisan or a person who will say anything for money as in Nelson, supra, 173 N.J. at 462, where the defense expert was labeled a partisan with an agenda.
We also reject the argument that the prosecutor vouched for Lester's credibility and offered personal remarks as to his theory of the murder. Viewing the summation in its entirety, the prosecutor did nothing more than argue how the jury could find Lester's testimony credible and marshaled and reconciled disparate elements of the evidence to support the State's contention that defendant shot the victim four times in the back. This is the essence of advocacy. He did not vouch for the credibility of any witness or offer a personal opinion of defendant's guilt.
The remaining contentions identified by defendant as error requiring a new trial are without merit. R. 2:11-3(e)(2). The loss of the victim's clothing did not require dismissal of the indictment. Defendant sought the clothing to rebut an early contention that the victim was shot at close range. If a person is shot at close range, clothing should show powder burns. However, by the time the matter proceeded to trial, the State conceded there was no evidence to support a shooting at close range. The need for the clothing to negate a version of events had simply dissipated.
Caldwell's out-of-court and in-court identifications of defendant were properly admitted. Although an identification by a single photo is inherently suggestive, State v. Adams, 194 N.J. 186, 210-11 (2008) (Albin, J. concurring); State v. Herrera, 187 N.J. 493, 504 (2006), his identification of defendant was inherently reliable, because Caldwell testified that he had known defendant since defendant was in middle school, see Herrera, supra, 187 N.J. at 506-509 (explaining reliability identification procedure is established if factors tending to illustrate reliability outweigh the "corrupting effects of impermissibly suggestive procedure[s]"). Caldwell also referred to him as Ookie and stated that defendant had been in his shop three or four times over the past two years. Caldwell's long acquaintance with defendant supported the reliability of his identification by a single photograph.
Finally, defendant's argument that the indictment should have been dismissed because Lester lied before the grand jury and that the trial judge failed to properly question a juror for potential bias are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).