Argued January 23, 2014
Approved for Publication October 10, 2014.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-03-0331.
Joseph J. Benedic t argued the cause for appellant ( Benedict and Altman, attorneys; Mr. Benedict and Philip Nettl, on the brief).
Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent ( Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief).
Before Judges GRALL, NUGENT and ACCURSO. The opinion of the court was delivered by GRALL, P.J.A.D.
[437 N.J.Super. 441] GRALL, P.J.A.D.
A grand jury charged defendant Geraldo Rivera with attempting to murder Sean and Michael Burns during a fight that started at a bar inside a liquor store and ended in the parking lot. The jury acquitted defendant of those charges but convicted him of lesser-included offenses: with respect to Sean, second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and with respect to Michael, fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(3).
The judge sentenced defendant to eight years' imprisonment for the second-degree assault, subject to terms of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2, [437 N.J.Super. 442] and to a concurrent fifteen months' imprisonment for fourth-degree assault. The judge also imposed the monetary assessments and penalty mandated by N.J.S.A. 2C:43-3.1 to -3.3, and a $3658 restitution obligation, a total of $4038.
Certain facts were undisputed. The fight, verbal at first, started after defendant questioned Sean about not leaving a tip for the bartender, who was then defendant's fiancé e. It ended with broken bottles inside and outside the establishment; Sean with four knife wounds to his torso; Michael with a cut across his abdomen that exposed his intestines and injured his stomach; and defendant with two head wounds and a scar on his forehead.
The defense was self-defense. Defendant admitted to swinging a utility knife he carried because of his work as a linesman to defend himself against what he believed would be a fatal " stomping" from the brothers. He also admitted that he stabbed Sean and cut Michael in the process. Michael acknowledged striking defendant in the head with a piece of asphalt, which he claimed to have done because he saw defendant stabbing Sean.
The participants in the fight - defendant, Michael and Sean -- and their respective eyewitnesses gave widely divergent accounts of what happened between defendant's criticism of Sean and the arrival of the police. Each side cast the other as the aggressor, and there was no medical testimony. Thus, in deciding whether the State proved that defendant was not acting in self-defense, the jury had to decide between the conflicting accounts of who did what and when.
The details of the conflicting accounts are not important to resolution of the issues raised on this appeal. There is no question that the evidence and reasonable inferences, viewed in the light most favorable to the State, provide adequate support for the jury's verdict. Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (constitutional standard for evidence adequate to withstand a motion for judgment of acquittal); State v. Reyes, 50 N.J. 454, 459, 236 A.2d 385 (1967) (same). All of defendant's claims concern the conduct of the assistant prosecutor [437 N.J.Super. 443] who tried the case, which defendant contends deprived him of a fair trial. His contentions are as follows:
I. The State's violation of the [o]rder sanitizing his prior convictions should have resulted in a mistrial. (Raised below).
II. The State's misconduct in climbing into the jury box in the middle of cross-examination of State's witness should have resulted in a mistrial. (Raised below).
III. The trial court erred in permitting the introduction of hearsay statements Michael Burns made to Officer McCauley, which was compounded by the misuse of those statements in the State's summation. (Partially raised below).
IV. The State's comments in opening and summation deprived [d]efendant of a fair trial. (Partially raised below).
A. The State introduced an unduly prejudicial visual presentation during its opening statement which expressed an opinion as to [d]efendant's guilt in inflammatory ways. (Raised below).
B. The State improperly vouched for the credibility, or lack thereof, of witnesses in summation. (Not raised below).
C. The State misstated the law. Raised below).
V. Cumulative error deprived [d]efendant of a fair trial.
For the reasons that follow, we conclude that the cumulative impact of the assistant prosecutor's conduct deprived defendant of a fair trial.
The well-established principles guiding prosecutorial conduct are easily stated and not unique to New Jersey. " [T]he primary duty of a prosecutor is not to obtain convictions but to see that justice is done. 'It is as much [a 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. Timmendequas, 161 N.J. 515, 587, 737 A.2d 55 (1999) (internal citation omitted) (quoting State v. Farrell, 61 N.J. 99, 105, 293 A.2d 176 (1972) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935))).
This case demonstrates the need to stress what those principles require. Prosecutors must choose their tactics in conformity with their legal duties. Thus, they are not free to employ [437 N.J.Super. 444] a prejudicial tactic just because the precise action has not yet been expressly condemned by the Supreme Court. Similarly, when a reviewing court has declared a method improper in a published opinion but concluded it to be harmless error in that case, compliance with the prosecutor's obligation does not permit repetition. A finding of harmless but improper prosecutorial conduct cannot, consistent with a prosecutor's duty, be understood as a license to mimic an improper method.
In this case, the cumulative impact of the prosecutor's transgressions requires reversal. As the Supreme Court has recently explained:
When legal errors cumulatively render a trial unfair, the Constitution requires a new trial. State v. Orecchio, 16 N.J. 125, 129, 106 A.2d 541 (1954).
" '[W]here any one of several errors assigned would not in itself be sufficient to warrant a reversal, yet if all of them taken together justify the conclusion that defendant was not accorded a fair trial, it becomes the duty of [a reviewing] court to reverse.'" Id. at 134, 106 A.2d 541 (quoting State v. Dolliver, 150 Minn. 155, 184 N.W. 848, 849 (1921)). If a defendant alleges multiple trial errors, the theory of cumulative error will still not apply where no error was prejudicial and the trial was fair. See State v. D'Ippolito, 22 N.J. 318, 325-26, 126 A.2d 1 (1956) (rejecting application of Orecchio because none of alleged errors prejudiced defendant nor impaired fair trial). In assessing whether a defendant received a fair trial, courts are guided by the following principle: " '[D]evised and administered by imperfect humans, no trial can ever be entirely free of even the smallest defect. Our goal, nonetheless, must always be fairness. A defendant is entitled to a fair trial but not a perfect one.'" State v. Wakefield, 190 N.J. 397, 537, 921 A.2d 954 (2007) (quoting State v. R.B., 183 N.J. 308, 333-34, 873 A.2d 511 (2005)).
State v. Weaver
219 N.J. 131
97 A.3d 663
Like Weaver, this " is a classic case of several errors, none of which may have independently required a reversal and new trial, but which in combination dictate a new trial." Id. at 162, 97 A.3d 663. Here, as in Weaver, the error involves a constitutional right, and reversal is required unless we can " conclude that the cumulative error was harmless beyond a reasonable doubt." Ibid. at 163, 97 A.3d 663; see Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-11 (1965).
Reversal of a conviction based on the prosecutor's conduct is appropriate only if that conduct was " 'so egregious that it deprived [the] defendant of a fair trial.'" State v. DiFrisco, 137 N.J. 434, 474, 645 A.2d 734 (1994) (quoting State v. Pennington, [437 N.J.Super. 445] 119 N.J. 547, 565, 575 A.2d 816 (1990)), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed.2d 873 (1996). Stated differently, reversal is warranted when the prosecutor's conduct " substantially prejudice[s] the defendant's fundamental right to have a jury fairly evaluate the merits of his or her defense." State v. Harris, 181 N.J. 391, 495, 859 A.2d 364 (2004).
Our courts have previously reversed convictions based on the cumulative impact of a prosecutor's misconduct. See, e.g., State v. Frost, 158 N.J. 76, 87, 727 A.2d 1 (1999); State v. Hinds, 278 N.J.Super. 1, 19, 650 A.2d 350 (App. Div. 1994), rev'd on other grounds, 143 N.J. 540, 674 A.2d 161 (1996). Long ago, the United States Supreme Court concluded that a new trial is required where the prosecutor's misconduct " was pronounced and persistent, with a probable cumulative effect upon the jury which cannot be disregarded as inconsequential." Berger, supra, 295 U.S. at 89, 55 S.Ct. at 633, 79 L.Ed. at 1321.
Even when the evidence is " overwhelming," strong evidence of guilt can " never be a justifiable basis for depriving a defendant of his or her entitlement to a constitutionally guaranteed right to a fair trial." Frost, supra, 158 N.J. at 87, 727 A.2d 1; accord State v. Smith, 212 N.J. 365, 404, 54 A.3d 772 (2012) (quoting Frost ). Moreover, in a case such as this where the jury has to choose which of two versions of an event to credit, " it simply cannot be said that the evidence is overwhelming." Frost, supra, 158 N.J. at 87, 727 A.2d 1.
Some particularized or specific rules have been recognized.
In Berger, the United States Supreme Court explained:
It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to ...