November 29, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN V. LOMBARDO, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-03-0779.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 2, 2011
Before Judges Fuentes, Graves, and Harris.
Defendant John V. Lombardo, Jr., was convicted by a jury of second-degree vehicular homicide, N.J.S.A. 2C:11-5(a), and found guilty by the trial judge of two non-indictable traffic offenses: driving while intoxicated (DWI), N.J.S.A. 39:4-50, and reckless driving, N.J.S.A. 39:4-96. The judge sentenced Lombardo to an aggregate eight-year custodial term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, together with a consecutive two-year driver's license revocation.
Lombardo appeals the trial court's rulings (1) denying his motion for a new trial because of the manner and content of the prosecutor's summation, (2) admitting the use of evidence of prior convictions for impeachment, (3) imposing an excessive sentence, and (4) failing to merge the conviction for DWI with the conviction for vehicular homicide. We affirm.
These are the facts derived from the trial record. On the evening of June 2, 2007, Theresa Kling and her fiance Michael Crowell decided to take a motorcycle ride together. Crowell was an experienced motorcyclist of over twenty years, while Kling had obtained a learner's permit only three months earlier. Crowell owned Primavera Pizza, located on Route 537 in Freehold.
As the motorcyclists approached the intersection of Routes 537 and 527 in Freehold around 1:00 a.m., Crowell observed what he described as a truck coming from the opposite end of the intersection (heading towards him and Kling) and make a left turn across the intersection without yielding. When the truck turned Kling was already three or four feet into the intersection. She tried to take evasive action and brake, but the rear wheel began to slide. According to Crowell, as the truck "was coming through the intersection, [it] didn't slow down. [It] just hit [Kling], and [it] continued to run over her, the top of [Kling]." At this moment, Crowell was approximately five feet behind the collision, but was able to stop. The truck initially slowed down, but "[t]hen [the driver] sped up" and continued onto Route 527 "without stopping." Crowell testified that the truck was "a dark green, very dull paint job."
Crowell ran to Kling, who's "condition was dire." He immediately dialed 9-1-1 for emergency assistance. Freehold police officers Earl Cain and Scott Keenan were the first to respond to the scene of the accident, at approximately 1:11 a.m. Officer Keenan testified that when he arrived at the scene of the accident, Crowell and several bystanders were standing at the corner and Kling "was conscious and bleeding from the mouth, and there was [other] blood, [but Keenan] couldn't tell the other areas she was bleeding from."
Paramedics reached Kling a few minutes later. One paramedic testified that when she arrived, Kling was "totally unresponsive, not moving." The paramedics moved the victim into an ambulance, "did a quick assessment," and drove to the local trauma center at Jersey Shore Medical Hospital. Kling died less than twenty-four hours later of traumatic brain injuries.
Meanwhile, Lieutenant Lawrence Loos was the next police officer to arrive on the scene. He learned that the vehicle that caused the accident was "a large dark green van . . . [that] left going south on [Route 527]." Loos left the scene of the accident traveling fast on Route 527 to look for the vehicle. Shortly, Loos came upon "a black pickup [truck], which had pulled off onto the shoulder." Lombardo was behind the pickup truck, with his back to the road, urinating into the grass. When Loos approached, Lombardo blurted out, "Oh, shit . [m]y brother-in-law is a sergeant in Barnegat." Loos observed Lombardo "unsteady on his feet" and using the pickup truck's tailgate to support himself. Loos further detected "a very strong odor of alcoholic beverage on [Lombardo's] breath" and that defendant's eyes were "very glassy, moderately bloodshot."
Loos believed that Lombardo was likely intoxicated, and he accordingly approached the pickup truck to make sure Lombardo did not drive away. Loos "noticed that the front right tire was flat and actually was shredded, that the rim was damaged as if it had been ridden on for a significant distance." Upon seeing this damage, Loos began to suspect that Lombardo had been involved in Kling's accident. Loos asked Lombardo where the damage came from, and Lombardo responded that "he didn't hit anything."
Loos asked Lombardo to perform field sobriety tests. Lombardo was unable to perform the tests as instructed, and he was placed under arrest for driving while intoxicated. Later, Lombardo submitted to a Breathalyzer test. Two tests were performed, at 3:09 a.m. and 3:17 a.m., and both produced blood alcohol concentration readings of 0.19 percent.*fn1
On June 20, 2007, the police executed a search warrant for Lombardo's pickup truck. A forensic report dated September 11, 2007, found a multi-layered piece of chrome-plated plastic embedded in Lombardo's bumper that "physically and chemically compared to the handlebar end cap from [Kling's] motorcycle." The report also found Plexiglas on Lombardo's "bumper/spoiler" that "physically and chemically compares to [Kling's] clear motorcycle windshield." The report noted that impact-resistant Plexiglas was "not typically found on automobiles," but was "commonly used as a windshield" on motorcycles.
Before trial, defense counsel objected to the introduction of Lombardo's prior convictions in the event he chose to testify. These convictions were from 2000 and 2005, and both were "simple possessory offenses" of controlled dangerous substances. The trial judge decided he would allow the State to introduce "the indictment number, the degree of the crime (but not identifying the crime), the date of the sentence, and the ultimate sentence." The judge concluded that admission of Lombardo's prior convictions, in this prescribed format, "are admissible as far as being used to affect the credibility of the defendant."
During summation, defense counsel argued "[t]his trial is about justice for John Lombardo," because "John Lombardo did not cause [Kling's] death." To this point, defense counsel argued that "[t]he [S]tate's theory in this case . . . defies common sense. It defies all logic. It defies eyewitness accounts." He further urged the jury not to compound the "tragedy" of Kling's death "by taking the life of another person just because of vengeance, just because you want a sense of revenge." Defense counsel emphasized the following:
You think [Lombardo]'s mad? You think he's mad? You think his life has been ruined as a result of this? Don't ruin it any further, ladies and gentlemen.
Defense counsel categorized the forensic evidence presented as "[a] particle, a smear." He offered alternative theories about how the accident happened and how the forensic evidence found on Lombardo's truck could have gotten there.
Defense counsel also argued that the evidence presented by the State could be viewed as supporting the notion that Crowell may have struck Kling with his motorcycle, thereby causing her death:
A theory that seems more likely, based on what you can see, is that the front tire locked up and this bike went down. And maybe Mike Crowell, while looking to the side, sees in front, sees that bike lock up, front tire, boom, goes down, she's sliding. It is quite possible that the angle that he was heading - and they show the skid marks. He's on the right hand side at [fifty] miles an hour. I'll give him the benefit of the doubt, let's say [fifty] miles an hour. He goes, boom, boom, boom, over [Kling's] bike. Because what would you have done in that situation when you called 9-1-1? . . . He didn't [yell that a green van took off up Route 527] -- he didn't even give this story until [five] minutes later when the police arrived. Maybe in his remorse over having been the person who encouraged [Kling] to get a motorcycle, had her get a permit, took her out in the middle of the night for a three and a half hour motorcycle ride, bought her a motorcycle instead of an engagement ring, maybe he has remorse over this.. . . .
And maybe that theory holds no weight whatsoever. Maybe I'm the biggest jerk in this courtroom for even suggesting it, but its just as consistent. In fact, it's an even stronger theory than the one the government has given you.
Defense counsel also challenged the impartiality of the police officers who investigated the case by speculating about the existence of a relationship between the police officers and Crowell:
Keenan was one of the first guys on the scene, and that's been testified to, and you can hear that from the dispatch tapes. And he said that Crowell told them that [Kling] was hit by a van. She was hit by a van. I don't know why this didn't send the police officers scrambling down other routes when they realized there was no evidence whatsoever that she was hit by a van. There is no evidence that she was hit by a van, or you would have heard it. Maybe it's because [the police officers] want to keep in good graces with their pizza buddy. He knows all of them. They've all been in his restaurant. You have to evaluate that when determining credibility.
When it was the State's turn for summation, the prosecutor's first remarks were the following:
The police wanted to keep in the "good graces" of their "pizza buddy"[?] Did anyone find that in the least bit offensive, that and the "fiance"[?] And the mocking tone in which he described the testimony of Michael Crowell."
Defense counsel immediately requested a sidebar conference, where he argued that "the prosecution cannot demean the role of a defense attorney in his closing statement." The trial judge agreed, but noted that defense counsel himself stated "that people may be disgusted with what [he was] saying." The judge overruled the objection, but warned the prosecutor to "be careful because we don't want to put error in your summation."
In summarizing the defense's theory of the case, the prosecutor stated:
And think about what they're trying to imply. Well, not so much imply, but really state. That Mike Crowell ran over Theresa Kling's motorcycle. . . . Think about what that implies, first of all, ladies and gentlemen. First of all, it implies that Mike Crowell who testified before you, made this whole thing up, he happened to say that a dark large vehicle was traveling south down [Route 527]. And it just so happened, wow, Mike Crowell is really lucky that there's a drunk guy two miles down the road, with a right-front tire that's shredded. And, oh, by the way, Mike Crowell is so lucky that there's forensic evidence that links it up to the scene. Ridiculous, ladies and gentlemen. It's preposterous.
The prosecutor commented about the decedent, stating:
[I]n fact, the evidence in this case shows that Theresa Kling wasn't making a mistake. She was driving the speed limit. She was wearing her helmet. She was with an experienced motorcyclist. She was going straight through an intersection on a green light. She was doing nothing wrong, ladies and gentlemen, and she didn't brake for no reason at all. She [applied her brakes] because she was cut off by [Lombardo's] pickup truck. And when she was cut off, she did what everybody does, whether you're brand new at something like riding a motorcycle or whether you're an experienced person riding a car. What do you do when someone cuts you off and you have a split second to make that decision? You slam on the brakes. That's exactly what you do, and that's exactly what Theresa Kling did, and she couldn't avoid dying. To blame Theresa Kling for this, to say somehow that she's the cause of her own death is like blaming a murder victim who's shot for not ducking. It's ridiculous.
Soon thereafter, the prosecutor indicated to the jury that "you don't have to have every single piece of the puzzle to be firmly convinced. You can have part of the information and still be convinced beyond a reasonable doubt. You know what this says?" Following this preface, he then projected a PowerPoint slide that read:*fn2
The slide drew defense counsel's objection, and the prosecutor was initially ordered to take the slide out of the view of the jury.
The next day, before the jury returned for the prosecutor's final comments and the court's instructions, the court ruled that the prosecutor's use of the slide was permissible. It noted that the slide is "not grotesque in any way, shape, or form" but rather simply "black lettering against a white background."
When the prosecutor resumed his summation, he reminded the jurors that in the slide he had presented, "[t]here are 21 letters there, and there are seven letters missing, but you know exactly what it says. And so my only point with this slide is that you don't have to have every piece of evidence to be convinced beyond a reasonable doubt."
The jury returned a verdict finding Lombardo guilty of vehicular homicide, and determining that he was intoxicated when he committed this offense. Thereafter, the trial judge found Lombardo guilty of driving while under the influence of alcohol and reckless driving, as "operating [a] motor vehicle while under the influence of an alcoholic beverage . . . is reckless conduct . . . ." Sentencing on the traffic offenses was reserved until sentencing on the indictable offense.
Prior to sentencing, Lombardo moved for a new trial based upon the prosecutor's comments and use of the PowerPoint slide in summation, and because the jury's verdict was against the weight of the evidence. The court denied the motion, ruling that "nothing said by the [p]rosecutor was so egregious that it deprived [Lombardo] of a fair trial. Even if statements made were somewhat prejudicial, this [c]court does not find that the [p]rosecutor overstepped the boundaries afforded him under the . . . case law." The court further noted:
Several times during [defense counsel's] summation defense counsel admitted to the jury that "maybe he," meaning defense counsel, "was being a jerk." Defense counsel was saying this about himself. If that [were] true, this court finds that the [p]rosecutor was entitled to comment on defense counsel's own conclusions.
The court also found that the prosecutor was "not required to disclose the content of the PowerPoint slide to defense counsel prior to his summation." Moreover, the court held that "the Prosecutor's PowerPoint presentation stating "THIS DEFENDANT IS GUILTY" without the vowels was not improper in the manner and context in which it was used.
At sentencing, the parties agreed that Lombardo was eligible for a discretionary extended term pursuant to N.J.S.A. 2C:44-3(a). The court did not impose the enhanced sentence; instead it ordered Lombardo to serve an eight-year NERA term. Lombardo was also sentenced to ninety days concurrently for the DWI offense, which included a "24-month driver's license revocation consecutive" to a 24-month suspension he received for the vehicular homicide. The conviction for reckless driving was merged with the DWI. This appeal followed.
On appeal, Lombardo argues the following points:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL SINCE THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY.
POINT II: THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT'S PRIOR CONVICTIONS WERE ADMISSIBLE TO ATTACK CREDIBILITY.
POINT III: THE TRIAL COURT ERRED IN FAILING TO MERGE THE DEFENDANT'S CONVICTION FOR DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL PURSUANT TO N.J.S.A. 39:4-50 INTO HIS CONVICTION FOR VEHICULAR HOMICIDE PURSUANT TO N.J.S.A. 2C:11-5. (PARTIALLY RAISED BELOW).
POINT IV: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Lombardo's pro se supplemental brief adds the following arguments:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL SINCE THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE.
A. ELEMENTS OF VEHICULAR HOMICIDE WERE NOT PROVEN BEYOND A REASONABLE DOUBT.
B. NO IDENTIFICATION OF THE DEFENDANT DURING THE COMMISSION OF THE CRIME.
C. NO IDENTIFICATION OF THE DEFENDANT'S VEHICLE DURING THE COMMISSION OF THE CRIME.
D. THE STATE FAILED TO ACCURATELY RECONSTRUCT THE ACCIDENT SCENE.
E. MICHAEL CROWELL IS NOT A TRUTHFUL EYEWITNESS.
F. FORENSIC "TRANSFER" EVIDENCE MEANS UNKNOWN.
G. INVESTIGATORS FAILED TO SOLVE THIS CASE.
POINT II: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL SINCE THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY (Already Raised by Designated Counsel).
We start with the claim that the prosecutor's summation exceeded the bounds of propriety and unduly prejudiced the defense. Lombardo argues that the prosecutor's use of the PowerPoint slide which read -- in black letters over a white background -- "TH_S D_F_ND_NT _S G_ _LTY," as well as other comments made to the jury, constituted prosecutorial misconduct warranting a new trial. Lombardo specifically argues that the comments denigrated defense counsel and the defense of the case, expressed a personal belief or opinion as to the truth or falsity of testimony or the guilt of Lombardo, and urged jurors that the only way that they could discharge their duty was to convict Lombardo. We disagree.
Prosecutors have considerable latitude to make arguments during summation. See State v. Echols, 199 N.J. 344, 359-60 (2009). However, that leeway is not without bounds. Inaccurate factual claims or suggestions to the jury that the prosecutor has knowledge beyond that admitted into evidence are prohibited. Id. at 360. It is nonetheless appropriate for a prosecutor to "'comment on the facts shown by or reasonably to be inferred from the evidence.'" State v. R.B., 183 N.J. 308, 330 (2005) (quoting State v. Carter, 91 N.J. 86, 125 (1982)). Moreover, "[a] prosecutor is permitted to respond to an argument raised by the defense so long as it does not constitute a foray beyond the evidence adduced at trial." State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied sub. nom., State v. Pantoja, 169 N.J. 610 (2001).
The prosecutor's PowerPoint slide did not communicate an impermissible message. The slide was presented in the context of the prosecutor's argument that, although the evidence in this case was circumstantial, such evidence fits together like a jigsaw puzzle allowing one to be certain beyond a reasonable doubt of the complete picture. The prosecutor noted this before presenting the slide, and he said it again as the slide was repeated the following day.
Similar to the facts in this case, State v. Michaels, 264 N.J. Super. 579, 641 (App. Div. 1993), aff'd, 136 N.J. 299 (1994), upheld a prosecutor's comments during summation where the letters to the word "GUILTY" were assembled on a board before the jury like a puzzle, to illustrate the jury's task of sifting through months of testimony to determine the defendant's guilt. We held that the prosecutor "was free to contend that the evidence proved defendant guilty." Ibid.
Likewise, none of the prosecutor's remarks communicated his personal opinion. All of his remarks were clearly based on the evidence presented at trial and not on the prosecutor's impermissible personal belief. The prosecutor, in concluding his summation, stated, "Based on the evidence in this case, the defendant is guilty. . . ." There was no impropriety in this.
Lombardo also argues the following was prosecutorial misconduct: (1) the comments that the defense theory of the case -- that Crowell had run over Kling -- was "ridiculous" and "preposterous," (2) the comment highlighting defense counsel's suggestion that the police wanted to keep in the good graces of their "pizza buddy," and (3) the disparagement of the defense's suggestion that Kling was not really Crowell's fiance.
A prosecutor may not "cast unjustified aspersions" on defense counsel or the defense. State v. Frost, 158 N.J. 76, 86 (1999). Accordingly, it is improper for a prosecutor to suggest that testimony was fabricated, to characterize the defense as outrageous or absolutely preposterous, to suggest that defense counsel is obscuring the truth, or to call a defendant derogatory names. See State v. Scherzer, 301 N.J. Super. 363, 446 (App. Div. 1997) (internal citations and quotations omitted). However, "[a] prosecutor is not forced to idly sit as a defense attorney attacks the credibility of the State's witnesses; a response is permitted." State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000) (citing State v. C.H., 264 N.J. Super. 112, 135 (App. Div.), certif. denied, 134 N.J. 479 (1993)).
The prosecutor's comments in this case were incapable of producing an unjust result. Defense counsel suggested, when presenting a different theory of the case (that Crowell had been the one who ran over Kling), that he might be the "biggest jerk in this courtroom" for merely making the suggestion. This theory implied, further, that Crowell had perjured himself, and that the police investigators went along with Crowell's lie because he was their "pizza buddy."
While it is generally inappropriate for a prosecutor to call the defense "preposterous," Scherzer, supra, 301 N.J.
Super. at 446, in the context of the summation this prosecutor's comments were not impermissible because he was entitled to forcefully respond to the defense's musings. That prosecutorial commentary did not substantially prejudice Lombardo's right to a fair trial because they were direct responses to defense counsel's remarks.
Finally, Lombardo argues that the prosecutor's comments urging the jury to convict him -- that "the only just verdict, the only fair verdict, is a verdict of guilty" -- were improper. The defense did not make any objection to this comment at trial.
Warning a jury about not doing its job is among the most egregious forms of prosecutorial misconduct. See State v. Knight, 63 N.J. 187, 193 (1973). Lombardo cites State v. Acker, 265 N.J. Super. 351 (App. Div.), certif. denied, 134 N.J. 485 (1993), for the proposition that the prosecutor's comment exceeded the bounds of propriety. In Acker, a prosecution for second-degree sexual assault of two children, the prosecutor told the jury that its function was to protect children. We held that the comment "alone had the clear capacity to deprive defendant of his constitutional right to a fair trial." Id. at 353, 357. Importantly, in Acker, the prosecutor misstated the role of the jury. Ibid.
Acker is inapposite. In the present case, the summation comments were delivered not to espouse the arrogation of the judge's role to instruct the jury, but to emphasize the quality of the proofs presented by the State. None of the prosecutor's comments during summation had the capacity to deprive Lombardo of his constitutional right to a fair trial, and we are unpersuaded that our intervention is required.
Lombardo claims that his prior convictions should not have been used by the State to impeach his credibility. Lombardo had been convicted in 2000 of third-degree possession of a controlled dangerous substance and in 2005 for a similar crime.
The trial court ruled both convictions were admissible, however they were required to be sanitized, allowing the jury to hear only the indictment numbers, the degree of the crimes, not identifying the crimes, the dates of the sentences, and the ultimate sentences.
The court's decision to admit the prior convictions was both well within its discretion and consistent with the conditions for admissibility under State v. Sands, 76 N.J. 127 (1978), and State v. Brunson, 132 N.J. 377 (1993). The 2005 conviction was not remote, and there is no indication that in admitting the more time-challenged 2000 conviction the court overstepped its discretionary authority.
Lombardo next argues that his conviction for DWI should merge with the conviction for vehicular homicide. In determining if two crimes should merge, our Supreme Court has adopted an approach that requires a court to consider "the elements of the crime, the Legislature's intent in enacting the statutes, and the specific facts of each case." State v. Dillihay, 127 N.J. 42, 47 (1992) (citing State v. Cole, 120 N.J. 321, 327 (1990)).
Second-degree vehicular homicide occurs "when [a homicide] is caused by driving a vehicle or vessel recklessly." N.J.S.A. 2C:11-5(a). Where, as here, a defendant is convicted of vehicular homicide and DWI, the convictions must merge if "the State's only evidence of recklessness was intoxication." State v. Baumann, 340 N.J. Super. 553, 556 (App. Div. 2001). However, under such circumstances the penalties for DWI will survive merger. See State v. Wade, 169 N.J. 302 (2001). On the other hand, in presenting proofs for a vehicular homicide charge, if "there is mixed evidence of recklessness such as excessive speed and intoxication," then merger is not required. State v. Stanton, 176 N.J. 75, 87 (2003) (citations omitted).
Here, there was mixed evidence from which to discern the basis for the jury's finding of recklessness. While the evidence of Lombardo's intoxication was very strong, the jury could have found that his conduct at the intersection -- not yielding to the motorcyclist who was already in the intersection; speeding away from the accident; and a lack of evidence that Lombardo signaled his left turn -- sustained a finding of recklessness independent of the evidence of intoxication. We perceive that mandatory merger was unwarranted.
Lombardo's final argument contends that his eight-year NERA sentence was excessive. We are unconvinced. From our review of the record, the trial court properly engaged in the sentencing process required by law. We thus discern no legal basis to interfere with the sentence imposed by the court.
Review of a sentence imposed by a trial court is limited to determining whether the court erred in the exercise of its discretionary authority and its finding of the relevant aggravating and mitigating factors in N.J.S.A. 2C:44-1. See State v. Tindell, 417 N.J. Super. 530, 567 (App. Div. 2011) (citing State v. Pierce, 188 N.J. 155, 166, 169-70 (2006)). Our role is to determine first, whether the correct sentencing guidelines . . . [or] presumptions, have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of the guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. [Ibid. (citing State v. Roth, 95 N.J. 334, 365-66 (1984).]
Lombardo argues that it was error for the trial court to find that N.J.S.A. 2C:44-1(a)(3) and (6) applied and to conclude that additional mitigating factors beyond N.J.S.A. 2C:44-1(b)(11), namely N.J.S.A. 2C:44-1(b)(2) and (7), were not present. The record amply supports all of the findings of the trial court. We discern no support in the record for any additional mitigating factors. See State v. Miller, 205 N.J. 109, 127 (2011); see also State v. Bieniek, 200 N.J. 601, 608 (2010). Moreover, the record does support the finding and application of aggravating factors three and six based on Lombardo's prior criminal history.
We lastly review Lombardo's pro se arguments. His first point -- consisting of at least seven sub-points that read like a summation -- argues that the verdict was against the weight of the evidence. Our review of the record convinces us otherwise, and his contentions are without sufficient merit to warrant any discussion in this opinion. R. 2:11-3(e)(2).
Lombardo's second point reprises and amplifies his appellate counsel's argument concerning prosecutorial misconduct. As we have already noted, the prosecutor's comments and conduct during summation were unremarkable and had no capacity to deprive Lombardo of his constitutionally-mandated fair trial.