Opinion
DOCKET NO. A-2040-10T4
03-05-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. T.J.M., Defendant-Appellant.
Alan L. Zegas argued the cause for appellant (Law Offices of Alan L. Zegas and Flood & Basile, attorneys; Mr. Zegas and Terel L. Klein, on the briefs). David A. Malfitano, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Mr. Malfitano and David V. Calviello, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Baxter and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-02-0222.
Alan L. Zegas argued the cause for appellant (Law Offices of Alan L. Zegas and Flood & Basile, attorneys; Mr. Zegas and Terel L. Klein, on the briefs).
David A. Malfitano, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Mr. Malfitano and David V. Calviello, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant was sentenced to an aggregate prison term of fourteen years, subject to an eighty-five percent period of parole ineligibility, after a jury convicted him of two counts of sexual assault and one count of endangering the welfare of a child, for sexually assaulting his girlfriend's daughter. He contends the prosecutor's pervasive misconduct, compounded by the trial court's erroneous rulings, including its denial of a mistrial, requires a new trial. After considering defendant's arguments in light of the record and applicable law, we affirm.
I.
A.
On February 6, 2008, a Bergen County Grand Jury charged defendant in a six-count indictment with three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b) (first, second and fifth counts); one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (third count); and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (fourth and sixth counts). In the first four counts, the indictment charged defendant with abusing his girlfriend's daughter. In the fifth and sixth counts, the indictment charged defendant with abusing his own daughter, but these counts were severed and they are not the subject of this appeal.
We have been informed that the fifth and sixth counts have been dismissed.
The first trial on the first four counts ended in a mistrial. Before the second trial began, defendant moved to exclude evidence of a six-year-old conviction for resisting arrest that occurred after police had stopped him for driving while intoxicated. The court denied the motion and ruled the State could use the conviction to impeach defendant if he decided to testify.
During his second trial, defendant moved unsuccessfully for a mistrial after the State's opening, during his cross-examination, and after the State's summation. At the conclusion of the State's case, defendant unsuccessfully moved for a judgment of acquittal. The jury found defendant guilty on the first, second, and fourth counts, but not guilty on the third count.
The court sentenced defendant on the first and second counts to consecutive seven-year prison terms, each with an eighty-five percent period of parole ineligibility as required by the No Early Release Act, N.J.S.A. 2C:43-7.2; and on the fourth count, to a concurrent four-year prison term. The court also sentenced defendant to parole supervision for life, N.J.S.A. 2C:43-6.4(a), ordered that he have no contact with the victim, and required him to comply with the registration requirements of Megan's Law, N.J.S.A. 2C:7-1 to -23. Lastly, the court imposed appropriate fines and assessments. This appeal followed.
B.
The State presented three witnesses at trial: the victim, Chloe; a youth services counselor who worked in a juvenile detention center; and a psychologist with expertise in Child Sexual Abuse Accommodation Syndrome (CSAAS). Chloe testified that she lived in Brooklyn, New York with her parents, both deaf, and her older brother, until she was five years old and her parents separated. When Chloe was six, her mother met defendant, who became her boyfriend. The following year, in January 1999, Chloe moved with her mother and brother to Maywood, New Jersey, where they lived for a year with defendant before moving again. The Maywood home is where defendant began to sexually abuse Chloe.
We use pseudonyms for family members to protect their privacy.
Defendant was deaf but could hear with a hearing aid, read lips, drive a car, and use a cellular phone. Chloe could communicate with defendant by using American Sign Language, which she had learned at a young age to communicate with her parents. She mostly spoke to defendant, however, because he could understand her if she talked slowly. When Chloe first met defendant, she thought he was a nice person. He took her and her family out and introduced them to things they had never done before. Defendant had three children, who lived in Fair Lawn, New Jersey, but would often stay at the Maywood home. Chloe became close to defendant's children and eventually considered the oldest, Ann, her best friend. When Chloe was eight years old, her stepsister was born.
Chloe testified that during the year her family resided in Maywood, defendant molested her three times. The first time, her family and some friends were downstairs watching a movie and she wanted to watch something else, so she went upstairs to her room. Defendant followed her. When she refused to return and watch the movie with the others, he threw her on her bed, tried to kiss her, and molested her. Over her clothes, he groped her breasts, her thighs, and her vagina. Confused, she screamed, "what are you doing?" He told her to relax, they were just playing a game, and "it's between me and you." Chloe perceived that defendant stopped because she was screaming and because he finally understood that she wanted him to stop.
Chloe was at home with the flu and alone with defendant when he molested her the second time. They were watching television on separate couches when he asked her to sit with him. He began to rub her inner thighs over her clothes and tried to touch her vagina, stopping when she jumped up and returned to the other couch. Once again he told her not to worry, that it was a little game they were playing, it was just between them, and they did not have to tell anyone else.
The third incident occurred when Chloe was in her room. Defendant entered the room and asked her to stand on a chair. Defendant tried to kiss her and began to touch her buttocks, breasts, and vagina over her clothes. She was able to push him away and run to her brother, who was in an adjoining room.
In April 2000, when Chloe was eight years old and attending third grade, she and her family moved into a house in Fair Lawn with defendant and defendant's brother, who had a girlfriend with a son. Chloe's brother moved to Texas to live with his father. Chloe recalled that defendant molested her four times during the three years she lived in Fair Lawn; twice in the house, and twice in his van.
One night when Chloe went upstairs, defendant asked her to sit on his bed, which she did. Defendant held her arms down, removed her pants and underwear, started to lick her vaginal area, and tried to grab her breast. After Chloe kicked defendant repeatedly, told him to stop, and told him to get off, he finally relented. Crying, she ran into the bathroom and washed her face. Defendant followed and asked whether it felt good. Chloe said "no," went downstairs to her room, and remained there for the rest of the night.
Another night, defendant told Chloe to sit on his bed after he came out of the upstairs shower wearing only a towel. He removed the towel and asked her to perform oral sex, which she refused to do. He then removed her pants and attempted to place his penis in her vagina. She screamed "Please stop. It's hurting me. Please." She testified that "his penis was touching my vagina. He was pushing it in and I told him to please stop because it hurt." He replied, "It's okay. It's okay. Don't worry. We're only playing. It's between me and you." When he stopped, she ran crying into the bathroom, cleaned her face, and then went to her room.
Chloe also testified defendant molested her twice at night inside his van when they were returning home after going to a pharmacy. She did not remember the year or her age, only that the assaults occurred between third and fifth grade. Each time, defendant asked if she wanted to learn how to drive. Each time, after putting her on his lap, he touched her thighs, breasts, and vaginal area. Each assault ended after he parked the car on a residential street, had her lie on her back, took off her pants and underwear, and licked her vagina.
Chloe told the jury she did not really understand what was going on when defendant molested her. As she got older, she understood more and more about what happened and how serious it was. When she was in sixth grade, she moved with defendant, her mother, and her sister to another home. Defendant did not molest her again. Not long after moving, her mother's relationship with defendant deteriorated and defendant moved out. Chloe missed him, but was relieved.
Chloe became a troubled teenager. She explained that she argued with her mother frequently, made bad choices, became friends with the wrong people, got into trouble, and performed poorly in school. She had to repeat seventh grade. In eighth grade, when she was thirteen years old, Chloe moved with her mother and sister into an apartment complex in Paramus. During the family's stay in the Paramus apartment, defendant moved into an apartment below them. For two years, through eighth and ninth grade, Chloe would see defendant often. He drove her to see friends, gave her money, bought her a cellular phone, and sometimes bought her cigarettes.
Around the same time, Chloe got into trouble, spent time in a juvenile detention center, and was placed on probation. Later, during high school, when she was fifteen, Chloe was ordered by the court to spend time in a juvenile residential program in Newark. While there, she wrote to both her mother and defendant. In a letter to defendant, Chloe told him about how she was trying to change, and thanked him for his support. She wrote:
I know you and mommy are here for me all the way and it's good to know that I have support. I hope you have a merry Christmas and a Happy New Year. Thank you for always being there for me and helping me through the rough times. You mean a lot to me, you're pretty much my second father and I know that you'll always be there for me. I love you, I miss you, and take care. Happy holidays. Love always, [Chloe].
Chloe returned home but in June 2007 she ran away and spent about a month at a friend's house. She violated the terms of her probation by not reporting to her probation officer, so the court issued a warrant for her arrest. She surrendered to police on July 25, 2007, and was taken to the Bergen County Juvenile Detention Center where she spent the first night in a jail cell, an experience she described as "horrible." She was scared and worried she might have to remain in the detention center for three years, until her eighteenth birthday. The following day, during an intake interview with a social worker, Chloe disclosed for the first time that she had been sexually abused.
The social worker, Sylvia Betesh, had worked at the detention center for nearly sixteen years. She testified that during the July 26, 2007 interview, fifteen-year-old Chloe was polite, personable, and cooperative until she asked Chloe if she had ever been sexually abused. Chloe became "quiet[,] . . . appeared stressed, tensed up[,] . . . [a] little teary eyed." Chloe said that when she was between the ages of eight and eleven years old she had been sexually abused, but she would not disclose who abused her or the nature of the abuse. Chloe eventually told her mother about the abuse and gave a statement to detectives, who arrested defendant.
To assist the jury in understanding why sexually abused children may delay reporting their abuse, the State presented the testimony of Dr. Anthony Vincent D'Urso, who explained the dynamics of CSAAS. Before doing so, Dr. D'Urso stated explicitly that he had no opinion concerning the validity or invalidity of Chloe's disclosure, and that CSAAS is not used to make a diagnosis. He had no knowledge of any facts concerning Chloe.
According to the doctor, CSAAS has numerous elements: "secrecy, helplessness, entrapment, coercion or accommodation, delay or unconvincing disclosure, and recantation"; collectively identified by the acronym, SHEDR. Typically, children do not disclose abuse after the first incident and as a result they tend to be victims of multiple acts. The doctor emphasized that "not one credible study in the world" finds that abused children typically disclose the abuse after the first incident. Rather, there is a time period between when the abuse takes place and when the victim discloses it, and that time frame is the dynamic of secrecy.
Dr. D'Urso further explained that many things perpetuate secrecy. Often in a family setting there is "a graduated process[,] sometimes referred to as grooming[,]" that begins with nonsexual behavior such as wrestling and tickling; progresses through more sexualized behavior such as accidental touching and entering a bathroom; and ultimately becomes significantly more sexual. The child may not perceive that certain behaviors are wrong. As a child gets older, the secrecy may be perpetuated because of shame, guilt, or humiliation; or the degree of the victim's affinity for the perpetrator.
A child's feeling of helplessness often results from believing either that no one will believe them or that a non-offending parent will not be able to protect them. Helplessness leads to entrapment, where a child is socialized in one or more ways into a sexual way of acting. Eventually, however, the child discloses the abuse. The disclosure is usually "a function of the child's or adolescent's development, sense of safety, security, not necessarily the world around them[.]" When disclosure occurs, a child is unlikely to remember everything that happened, and if a child perceives a lack of support from the people around them, recantation to some degree will likely occur.
Defendant presented the testimony of five character witnesses who attested to his honesty and integrity. Defendant also presented the testimony of his oldest daughter, Ann, who not only attested to his good character, but also refuted part of Chloe's testimony. Ann testified that Chloe was her best friend. While growing up, Ann saw Chloe every other weekend from five o'clock Friday through five o'clock Sunday. When Chloe and her family moved to Fair Lawn, Ann would also see Chloe at school. Chloe never mentioned any problem with defendant.
Ann did not recall ever watching a movie with her family, Chloe's family, and friends. She explained that defendant and Chloe's mother might have watched a movie, but because "[a]ll of us kids were always in different rooms, running around, playing with each other, doing different activities[,] [i]t would be kind of hard to get us all to sit down at the table or watching a movie." She also explained that she and Chloe went everywhere together, so if Chloe was watching a movie with the family and got up to leave, she would have followed her.
Defendant's brother Jake, who owned the Fair Lawn home, also refuted parts of Chloe's testimony. He told the jury that for the first year Chloe and her mother lived in his house, Chloe's mother stayed at home to care for Chloe's new sister. Defendant and Jake, on the other hand, worked from eight o'clock in the morning to five o'clock in the afternoon Monday through Friday, and from eight o'clock to one o'clock on Saturday. Jake said he never saw Chloe enter defendant's bedroom. There was no shower upstairs; the showers were in the first-floor bathroom and in the basement. Jake testified that while defendant lived in Fair Lawn he drove a Ford station wagon, and then a Dodge minivan, and lastly a Ford Taurus. Jake never saw defendant take Chloe for a ride at night.
Defendant, age forty-four, testified with the aid of an interpreter. He emphatically denied abusing Chloe. Addressing each and every incident that Chloe had recounted, defendant insisted that he would never engage in such conduct. He also refuted specific parts of Chloe's testimony. For example, he remembered the night the two families watched a movie, but denied that Chloe left and went to her bedroom. He told the jury there was no upstairs shower in the Fair Lawn home. And he explained the only van he drove during the time he lived in Fair Lawn was a 1998 Chrysler Caravan that had bucket seats in the front with a console between them, and bench seats in the back.
Anticipating the prosecutor's cross-examination, defendant disclosed his six-year-old conviction for resisting arrest following a motor vehicle stop, explained he had been frustrated because he had no interpreter, and acknowledged he should have handled the situation better.
The jury found defendant guilty on three counts and the court sentenced defendant accordingly. This appeal followed.
II.
Defendant presents the following arguments for our consideration:
POINT I
THE PROSECUTOR'S MISCONDUCT, THE TRIAL COURT'S FAILURE TO GRANT DEFENDANT'S MOTIONS FOR MISTRIAL, AND THE CUMULATIVE ERRORS OF THE TRIAL COURT ALL VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND REQUIRE REVERSAL OF DEFENDANT'S CONVICTION.
A. The Prosecutor's Comments, Questions, and Conduct Clearly Violated Defendant's State and Federal Constitutional Rights to Due Process and a Fair Trial.
1. The Prosecutor's Opening Statement and Closing Argument Were Improper and Violated Defendant's Right To a Fair Trial.
a. The Prosecutor's Opening Statement Was Improper Because It Was Argumentative, Made Use of Unnecessary, Inflammatory Language Meant to Prejudice the Jury
B. The Trial Court's Failure to Grant Defendant's Motions for Mistrial Constituted Reversible Error.Against Defendant, and Implied That Defendant Committed Additional Crimes Not Charged in the Indictment.2. The Prosecutor's Attempt to Make Defendant's Disability an Issue at Trial Was Improper and Highly Inflammatory.
b. The Prosecutor's Closing Argument Was Improper Because the Prosecutor Employed Inflammatory Language and Referenced False Information That Was Not in the Record.
3. The Prosecutor Improperly Sought to Portray Defendant as a "Bad Man" through References and Insinuations to Prior Bad Acts, Other Irrelevant Facts, and by Questioning [Chloe] About Other Crimes Not Charged in the Indictment.
4. The Prosecutor's Conduct During The Defendant's Closing Argument Was Improper and Designed to Prejudice the Jury.
C. The Cumulative Errors of the Trial Court Violated Defendant's Constitutional Right to a Fair Trial and Constituted Reversible Error.
1. The Trial Court Erred When it Allowed Evidence Of Defendant's Prior Crime to Come Before the Jury.
2. The Court Erred by Allowing the Prosecutor to Question the State's Primary Witness Regarding Bad Acts Not Previously Disclosed to the Defense.
3. The Court Erred by Allowing the Prosecutor to Lead the Victim During Her Testimony and Ask Repetitive Questions on the Inflammatory Details of the Alleged Abuse.
4. The Trial Court Erred by Allowing [Witness] to Testify About [Chloe]'s Demeanor at the Time [Chloe] First Alleged She Was Abused.
5. The Trial Court Erred When it Permitted Expert Testimony on Sexual Abuse Accommodation Syndrome When the Defense Raised No Issue of the Timing of [Chloe]'s Disclosure.
6. The Trial Court Erred by Admitting Highly Prejudicial Hearsay Testimony, Consisting of the Victim's Letters, over Defendant's Objection Because the Evidence Does Not Qualify Under Any Hearsay Exception.
Defendant first contends the prosecutor's misconduct throughout the trial constitutes reversible error. When reviewing such claims, we must determine whether misconduct occurred, and if it did, we must evaluate "the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).
In determining whether prosecutorial misconduct has occurred, we are guided by well-settled principles that apply to the general duty of prosecutors, and to a prosecutor's performance during specific phases of a trial. As our Supreme Court has noted, "New Jersey courts have commented repeatedly on the special role filled by those entrusted with the responsibility to represent the State in criminal matters, observing that the primary duty of a prosecutor is not to obtain convictions but to see that justice is done." State v. Smith, 212 N.J. 365, 402-03 (2012), petition for cert. filed (U.S. January 22, 2003)(No. 12-8377). "'If fairness and justice are forgotten in the pursuit of a guilty verdict, the integrity and authority of our criminal justice system is challenged.'" Id. at 403 (quoting State v. Goode, 278 N.J. Super. 85, 91-92 (App. Div. 1994)).
Nevertheless, the duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987). "[A] prosecutor cannot be expected to present the State's case in a manner appropriate to a lecture hall." State v. Johnson, 31 N.J. 489, 510-11 (1960). The prosecutor may argue the case "graphically and forcefully," Smith, supra, 212 N.J. at 403, but must not lose sight of the obligation to "conscientiously and ethically undertak[e] the difficult task of maintaining the precarious balance between promoting justice and achieving a conviction, ensuring that at all times his or her remarks and actions [are] consistent with his or her duty to ensure that justice is achieved." State v. Jackson, 211 N.J. 394, 408 (2012) (alterations in original) (internal quotation marks omitted).
For those reasons, during the various phases of a trial, "[o]ur jurisprudence requires that prosecutors act in accordance with certain fundamental principles of fairness." State v. Echols, 199 N.J. 344, 359 (1999). When making opening statements, "prosecutors should limit comments . . . to the facts [they] intend[] in good faith to prove by competent evidence[.]" Id. at 360 (alterations in original) (internal quotation marks omitted). Because "[t]he purpose of a prosecutor's opening statement is to present to the jury an outline or summary of what the State expects to prove[,] [p]rosecutors should limit themselves in their opening to what they will prove and not 'anticipate' their 'final argument.'" State v. W.L., 292 N.J. Super. 100, 108 (App. Div. 1966) (quoting State v. Ernst, 32 N.J. 567, 577 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961)). Prosecutors are prohibited from including in their opening statements inflammatory comments that suggest a defendant is dangerous, see Echols, supra, 199 N.J. at 359-60; suggesting they know of reasons beyond the evidence why the jury should reach a certain verdict, see State v. Wakefield, 190 N.J. 397, 436, 438-39 (2007); and making inflammatory comments to generate sympathy for the victim or animosity toward the defendant, see W.L., supra, 292 N.J. Super. at 108.
During summation, prosecutors "must confine their comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Reddish, 181 N.J. 553, 641 (2004). "[S]o long as [they] confine[] [themselves] to the facts and reasonable inferences, what [they] say[] in discussing them, by way of comment, denunciation or appeal, will afford no ground for reversal." Johnson, supra, 31 N.J. at 510.
When making a closing argument, a prosecutor may not "make inaccurate legal or factual assertions[,]" State v. Frost, 158 N.J. 76, 85 (1999); make an argument knowing it to be at least arguably contrary to facts or evidence the court has ruled inadmissible, State v. Ross, 249 N.J. Super. 246, 250 (App. Div.), certif. denied, 126 N.J. 389 (1991); "express a personal belief or opinion as to the truthfulness of his or her own witness's testimony[,]" or suggest a "police witness will suffer penalties if a jury is unconvinced by their testimony[,]" State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993); "cast unjustified aspersions on defense counsel or the defense," State v. Acker, 265 N.J. Super. 351, 356 (App. Div.)(internal quotation marks omitted), certif. denied, 134 N.J. 485 (1993); or "warn[] a jury about not doing its job[,]" id. at 357.
A prosecutor's duty to refrain from improper methods that result in wrongful conviction extends as well to the examination and cross-examination of witnesses. A prosecutor may not elicit improper or inflammatory testimony from a witness. See State v. McGuire, 419 N.J. Super. 88, 140-42 (App. Div.), certif. denied, 208 N . J . 335 (2011). "The foundational principle in [the] framework [of cross-examination] is that a prosecutor must have 'reasonable grounds' for posing questions during cross-examination that impugn a witness's credibility." State v. Daniels, 182 N.J. 80, 99 (2004).
Prosecutorial "misconduct does not warrant reversal unless it is 'so egregious that it deprived the defendant of a fair trial.'" Jackson, supra, 211 N.J. at 409 (quoting Frost, supra, 158 N.J. at 83). In assessing the impact of prosecutorial misconduct, we must "consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." Timmendequas, supra, 161 N.J. at 575. If a defendant objected to the misconduct and moved for a mistrial, we "will not disturb a trial court's ruling on [a] motion for a mistrial, absent an abuse of discretion that results in a manifest injustice." Jackson, supra, 211 N.J. at 407.
A.
We turn now to defendant's arguments concerning the prosecutor's opening statement. First, defendant asserts that the prosecutor tried to inflame the jury when he made the following introductory remarks:
[F]ew things are more shocking and disturbing than the sexual abuse of a child and you don't have to be a parent of a child to appreciate a child's innocence, their naiveté, their unawareness as [to] the issues that perhaps are common to adults.
And in sexual abuse of a child the offender often takes advantage of that innocence. They often, as the evidence will show, take advantage of the position of trust, control and parental figure that they have over that child. And that trust and control, that familiarity with the child becomes the vehicle by which they can carry out their crimes, and this control, ladies and gentlemen, can last long after that offender has left the child and is no longer with the child.
Next, defendant challenges the prosecutor's comment when describing Chloe's disclosure to her mother: "[A]t this time [Chloe] was prepared to tell her mother who it was and you can imagine as a parent how that went over."
Defendant also challenges as an exaggeration the following description of the incident in which defendant took off Chloe's pants and put his mouth and tongue on her vagina:
And it wasn't just one time. There were a few more. It wasn't everyday. It wasn't necessarily every week. And that the end of this case, ladies and gentlemen, you may only come up with three or four, maybe five times of recollections and memories vivid in her mind of this kind of abuse but it happened, the evidence will show.Defendant objects to the prosecutor's reference to "numerous acts of cunnilingus," claiming it was not supported by testimony or alleged in the indictment.
Lastly, defendant argues that the prosecutor exceeded the proper scope of opening statements by telling the jury that Chloe was protecting defendant when she initially disclosed the abuse to Betesh; "arguing" about how the evidence would show Chloe to be a credible witness and why the jury should reject several defense theories about Chloe's motivation and conduct; telling the jury that sexual abuse is usually committed behind closed doors and testimonial evidence is accepted throughout the country; and defendant had the opportunity to commit, and committed, the acts charged in the indictment.
We disagree with defendant that the prosecutor's introductory remarks were inflammatory and denied him a fair trial. The prosecutor's opening comment -- that few things are more shocking and disturbing than the sexual abuse of a child -- was not evidence the prosecutor intended to prove at trial. Rather, it was comment about child abuse, and more specifically a generalization about how people react to child abuse. Consequently, the statement violated the general principle that prosecutors may state in openings only facts they intend in good faith to prove by competent evidence. But a prosecutor's failure to adhere to that principle "is not ground for reversal unless allegations in the opening statement are completely unsupported by the evidence and there is a showing of prejudice to the defendant and bad faith by the prosecutor." State v. Hipplewith, 33 N.J. 300, 309 (1960). One can hardly dispute the proposition that sexual abuse of children is both shocking and disturbing. The prosecutor's stating that evident proposition in his opening statement had minimal if any prejudicial impact. The remark was certainly not so egregious that it deprived defendant of a fair trial.
The prosecutor immediately followed that comment by a reference to children's innocence, naiveté, and unawareness of issues perhaps common to adults. The prosecutor then proceeded to explain how an offender takes advantage of such innocence, particularly positions of trust and control. Those comments were fully supported by the testimony of both Chloe and Dr. D'Urso.
The prosecutor's statement about Chloe disclosing the abuse to her mother, and specifically his comment, "you can imagine as a parent how that went over[,]" was improper. The prosecutor did not present testimony from Chloe's mother, nor did he elicit testimony from Chloe about "how that went over." But the improper comment can hardly be said to have prejudiced defendant and deprived him of a fair trial, as it contained no inflammatory rhetoric.
For the most part, the remaining comments complained about by defendant were supported by the evidence. Chloe described three incidents involving defendant performing cunnilingus, and seven incidents of sexual abuse. In view of her testimony, the prosecutor's statements that oral sex did not occur one time, but a few more, and his statement referencing three, four, or five incidents of abuse, were consistent with the evidence he produced at trial.
Additionally, one could reasonably infer from Chloe's and Dr. D'Urso's testimony that she was protecting defendant when she refused to disclose his name during her interview at the juvenile correctional facility. Defendant did not commit the crimes in public, and the evidence supported the prosecutor's assertions that defendant had an opportunity to take advantage of Chloe and committed the acts charged in the indictment.
Several of the prosecutor's comments crossed over from intended proofs to arguments. His comment that testimonial evidence is accepted everywhere in the country, though true, was certainly not something he intended to prove at trial. And his statements about why the jury should reject certain defense arguments, and how the evidence demonstrated Chloe was credible, should have been reserved for summation. But those "arguments" were not completely unsupported by the evidence, prejudicial, and made in bad faith. Ibid. They did not deprive defendant of a fair trial simply because they were "argued" in an opening statement rather than in a summation.
Our conclusion that the prosecutor's argumentative comments were not unduly prejudicial does not mean we condone them. A prosecutor, like any other trial lawyer, should adhere to rules of evidence. But deviations from rules of evidence are not necessarily prejudicial, and do not necessarily deprive a litigant, or a defendant in a criminal case, of a fair trial. Significantly, litigants have a remedy when an adversarial attorney "argues" during an opening statement. The remedy requires an objection, which a trial court should sustain; and if the offending attorney persists, the trial judge should admonish the attorney accordingly. We recognize that in the case before us defense counsel anticipated that the prosecutor might attempt to "argue" during opening statement. We also recognize that, as a matter of courtesy, defense counsel decided to reserve his objections until the prosecutor completed his summation. While we commend his civility, he should have objected when the prosecutor persisted in "arguing" during his opening statement.
In view of our conclusion that the prosecutor made no unduly inflammatory remarks in his opening statement, we also reject defendant's argument that the court should have declared a mistrial following the opening statement. Responding to defendant's request for a mistrial, the court found
there was not significant or any argument more than an opening statement where the Prosecutor expressed what he intends to prove. He may have gotten a little flowery, but it was clearly within the opening statement as I see it. I see no prejudice to the defendant and I am going to deny the application.As the Supreme Court has stated, "[t]his sort of determination rests within the sound discretion of the trial court and it should not be disturbed when, as in this case, there is no clear showing that the court abused its discretion or that the defendant suffered actual harm." State v. Labrutto, 114 N.J. 187, 207 (1989). Here, the trial court acted well within its discretion when it denied the motion for a mistrial.
B.
Defendant next contends the prosecutor engaged in numerous acts of deliberate misconduct during his examination of witnesses. Specifically, he contends the prosecutor: attempted to make his hearing impairment an issue at trial; prejudicially raised the spectre of his prior bad acts, such as buying Chloe cigarettes; asked defendant if his daughter had always slept with her mother; cross-examined him about his prior conviction in an inflammatory manner; unsuccessfully attempted to cross-examine him about a period of time after the events in the indictment; and examined Chloe about the incident in Fair Lawn when defendant accosted her after walking out of a bathroom wearing only a towel.
Defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following. To the extent defendant's arguments are based on discussions and the hearing conducted outside the presence of the jury, there could have been no prejudice to defendant, because the jury did not hear the prosecutor's questions and comments. The extent of defendant's hearing disability was readily apparent to the jury. With the exception of Chloe's testimony about one incident of abuse, the references by witnesses to defendant's actions, such as buying Chloe cigarettes, were inconsequential. And contrary to defendant's argument, Chloe's testimony about the incident that occurred when defendant emerged from the bathroom wearing only a towel was encompassed within the timeframe of the indictment, and was relevant to the fourth count charging defendant with child endangerment.
Defendant also argues that the prosecutor committed misconduct when he paraded Chloe into the courtroom during defense counsel's summation. Chloe entered the courtroom after defense counsel began his closing argument. With the exception of her own testimony, Chloe had apparently not been present throughout the trial. Defense counsel did not interrupt his argument to make a record, and only mentioned the issue after the prosecutor completed his summation. When the prosecutor attempted to respond to defense counsel's accusation about the timing of Chloe's appearance, defense counsel acknowledged the victim was "allowed to be here" and asked the court to address another issue. In short, defendant did not attempt to make a record, let alone an adequate record, concerning the issue. There is no evidence that the prosecutor "timed" Chloe's entry to either disrupt defense counsel or bolster Chloe's credibility.
To support his argument, defendant cites an unpublished opinion in which, he alleges, the same prosecutor engaged in substantially similar misconduct. See State v. Mosby, No. A-3233-08 (App. Div. April 19, 2010) (involving a witness's appearance in the courtroom and the prosecutor's identification of the witness during his closing argument). Defendant asserts that we should consider that opinion as evidence of the prosecutor's pattern of conduct.
The assistant prosecutor arguing this appeal is not the assistant prosecutor who tried the case.
Rule 1:7-2 provides in pertinent part:
For the purpose of reserving questions for review or appeal relating to rulings or orders of the court or instructions to the jury, a party, at the time the ruling or order is made or sought, shall make known to the court specifically the action which the party desires the court to take or the party's objection to the action taken and the grounds therefore.
Defense counsel made no application to the trial court. Rather, he simply stated his desire to have "the record reflect . . . it was after I started my opening argument that the victim came into the courtroom with some representative I believe from the Prosecutor's Office and sat down, after defense counsel got started doing the closing argument that they paraded the alleged victim into the courtroom." Defense counsel did not specify whether he wanted the court to take any action, or whether he simply wanted the record to reflect the timing of Chloe's appearance. When the prosecutor started to respond, defense counsel said, "[the victim] is allowed to be here. Let's address the godfather and the uncle being present when she testified."
Having failed to request that the trial court conduct a hearing or take any other action, defendant has provided no competent record for our review and no competent evidence that the prosecutor orchestrated the timing of Chloe's appearance. There is no caselaw imposing limits on the timing of a victim's entrance into the courtroom, and, absent something such as demonstrative conduct or an emotional outburst by the victim upon her entry into the courtroom, we are disinclined to conclude that her entry into the courtroom during the defense summation interfered with, or contributed to interfering with, defendant's right to a fair trial.
C.
Defendant asserts the prosecutor made inflammatory and false statements in his summation that were so prejudicial they deprived defendant of a fair trial. We disagree.
Defendant complains about three statements made by the prosecutor during summation: First, the prosecutor said defendant's conduct was "so disturbing that it's almost incomprehensible to a child[.]" Second, when discussing Chloe's involvement with the juvenile justice system, the prosecutor stated, "[d]oes it surprise any of you that [Chloe], given her history of just a few years earlier, would end up in the juvenile system? Is that a real shocker?" Lastly, defendant claims the following statement by the prosecutor was not supported by the evidence: "[a]nd she recounts for you, ladies and gentlemen, at least four instances of sexual conduct, two that occurred in a van, one that occurs in her bedroom . . . and that attempted sexual assault of the touching . . . ."
Nothing the prosecutor said in his summation was so egregious that it denied defendant a fair trial and therefore warrants reversal. His reference to the sexual abuse of children as "disturbing," and his statement that it is almost incomprehensible to a child, were supported both by Chloe's testimony and Dr. D'Urso's testimony. Likewise, the prosecutor's use of the phrase "at least" when referring to four instances of abuse was supported by the doctor's testimony that children rarely remember everything that has happened to them. Further, considered in context, the prosecutor's use of the phrase "at least" could hardly have deprived defendant of a fair trial.
The prosecutor's rhetorical question about whether any of the jurors were surprised that defendant ended up in the juvenile justice system, given her history of just a few years earlier, was of questionable propriety, particularly because the court had limited the scope of cross-examination on the subject. Chloe did testify, however, that while on probation she ran away from home because she "was just fed up with everything . . . fed up with life." One could reasonably infer that she was "fed up" and wanted to run away from home in part because she had been sexually abused. But even if the connection between Chloe's legal problems and the sexual abuse was unsupported by the evidence, that remark was not so prejudicial as to deprive defendant of a fair trial. In fact, the jury acquitted defendant of aggravated sexual assault, the most serious offense charged in the indictment.
Finally, defendant argues the prosecutor misled the jury about the presence of certain spectators when he said:
The funny thing is here, ladies and gentleman, this child never wanted to come here. You heard a child victim tell you how she still has love for the defendant. She loves his daughters. She testified in front of her grandparents, uncles, godfather.
The prosecutor meant to convey that Chloe testified in front of defendant's brother and other family members. He should have made no mention of those present when Chloe testified. The presence of spectators, when they were present, and who they were related to, were matters not in evidence, and the relevance of spectators being present during any witness's testimony is questionable. Nevertheless, following defendant's objection and the ensuing discussion between the court and counsel, the court instructed the jury:
There were some comments by the attorneys in their summations and the attorneys have a right to comment on the evidence. But your recollection of what the evidence was [may] be different from what their recollection of the evidence was.In view of the court's prompt curative instruction, we find no basis for concluding that the remark was so prejudicial that it deprived defendant of a fair trial.
I know at one point the Prosecutor spoke about the victim having to testify in front of uncles, godfather and grandparents.
I don't recall any testimony of those people being in court or any indication who some of the spectators were but it's not my recollection. It's not the Prosecutor's recollection and it's not the defense attorneys['] recollection. It's your recollection both individually and collectively that governs the facts of the case. In your deliberations you are to determine things.
So again, what the attorneys have said in summations is what they think the evidence showed. They may be right. They may be wrong but it's not what governs. What governs is what your recollection [is] of the testimony.
Having concluded that the prosecutor made no unduly prejudicial remarks in his closing statement, we reject defendant's argument that the court should have granted his motion for a mistrial.
III.
Defendant next argues the trial court committed numerous errors which, cumulatively, deprived him of a fair trial. Our Supreme Court has explained the doctrine of cumulative error: "the rule is that where 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 this court to reverse." State v. Orecchio, 16 N.J. 125, 134 (1954). Here, the record does not support such a conclusion.
Defendant alleges the trial court wrongly admitted into evidence his six-year old conviction for resisting arrest. Before ruling that the conviction was admissible, the trial court conducted a Sands hearing and viewed a videotape of the arrest that resulted in the conviction. After evaluating the factors and considerations discussed in Sands and State v. Brunson, 132 N.J. 377, 391-93 (1993), the court concluded that any prejudicial impact occasioned by admitting the conviction would not outweigh its probative value.
State v. Sands, 76 N.J. 127, 144-47 (1978).
As a threshold matter, such convictions are admissible "[f]or the purpose of affecting the credibility of any witness . . . ." N.J.R.E. 609. The court's decision to admit or deny such a conviction rests within its sound discretion. Sands, supra, 76 N.J. at 144. We will not reverse a trial court's decision absent an abuse of discretion. State v. Jackson, 278 N.J. Super. 69, 79 (App. Div. 1994), certif. denied, 141 N.J. 95 (1995). Though one could legitimately argue the conviction should have been excluded because it was remote, and because its relevance to defendant's credibility was questionable, our role is not to second-guess the trial court. We find no reason to conclude that the trial court abused its discretion by admitting the conviction. Additionally, we note that in its charge, the court gave an appropriate instruction concerning the limited admissibility of the conviction.
Defendant next argues the trial court erred by permitting the prosecutor to question him about buying Chloe cigarettes and whether his daughter slept with her mother; and permitting Chloe to testify about the incident that occurred when defendant emerged from a bathroom wearing only a towel. We have previously addressed these issues in the context of defendant's prosecutorial misconduct arguments. There is no need to address them again.
Defendant's argument that the trial court erred by permitting defendant to ask Chloe repetitive and leading questions is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). A trial court's control of proceedings, including the manner of examining witnesses, is a matter that rests within its sound discretion. State v. Bey, 129 N.J. 557, 594 (1992); N.J.R.E. 611(a), (c). Our review of the record here reveals no abuse of discretion.
Defendant also argues the trial court erred by permitting social worker Betesh to testify about Chloe's demeanor when Chloe disclosed she had been sexually abused. Specifically, defendant argues that Betesh "was presented to the jury as someone who was somehow uniquely qualified to assess [Chloe's] credibility." That is not so. Betesh merely described Chloe's demeanor when Betesh asked her about sexual abuse. "A witness need not be an expert to make and describe[] observations" about another's demeanor. State v. Walker, 216 N.J. Super. 39, 45 (App. Div.), certif. denied, 108 N.J. 179 (1987).
When and how Chloe disclosed defendant had sexually abused her was relevant to the State's case, particularly in view of defendant's suggestion that Chloe fabricated the abuse to avoid further detention in a juvenile facility. Unlike State v. J.Q., 252 N.J. Super. 11, 39-40 (App. Div. 1991), aff'd, 130 N.J. 554 (1993), relied upon by defendant, here, Betesh merely described Chloe's demeanor; she did not express an opinion that bolstered Chloe's credibility.
We also reject defendant's argument that the court improperly admitted Dr. D'Urso's testimony about CSAAS. That testimony was admissible to explain why many sexually abused children delay reporting their abuse, recant allegations of abuse, or deny abuse occurred. State v. P.H., 178 N.J. 378, 395 (2004). Contrary to defendant's argument, such testimony is not admissible only when a defendant makes an issue of a victim's delay in reporting abuse.
CSAAS expert testimony may serve a "useful forensic function" when used in a rehabilitative manner to explain why many sexually abused children delay in reporting their abuse, or later recant allegations of abuse.
. . . .
CSAAS expert testimony should be admissible to assist a jury in evaluating evidence about an alleged victim's post-assault conduct or behaviors when that conduct may be misperceived by jurors as inconsistent
with the truthfulness of the claim of assault.
[Ibid.]
Jurors may have misperceptions about why children delay reporting sexual abuse even when a defendant does not raise the issue. In the case before us, Chloe delayed reporting her abuse for a considerable period of time. Defendant attempted to imply that Chloe falsely accused him of sexual abuse to minimize her entanglement with the juvenile justice system. Chloe's delay in reporting the abuse, left unexplained, would have implicitly supported that defense. Dr. D'Urso's testimony was relevant because, if believed, it not only negated any preconceived misperceptions about Chloe's delayed disclosure, but also negated a possible inference that her delayed disclosure occurred because she was fabricating the accusations to minimize her own trouble with juvenile authorities.
We have considered defendant's remaining arguments and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
FISHER, P.J.A.D., dissenting.
Although I agree with much of what the majority has said as to many of the issues presented, I cannot agree we should excuse those circumstances to which I will allude by resorting to a harmless-error analysis or otherwise. I would conclude that the cumulative effect of at least four events rendered the trial unfair. State v. Wakefield, 190 N.J. 397, 537-38 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008); State v. Orecchio, 16 N.J. 125, 129 (1954).
The majority has thoroughly and accurately described the evidence, which reveals the State's case was far from overwhelming. Indeed, the jury acquitted defendant of the most serious charge, first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1). The State's case largely consisted of Chloe's testimony about events she claims occurred years earlier; her testimony was not always consistent with earlier versions. The defense consisted of defendant's own denials of Chloe's allegations, and character witnesses, as well as the testimony of one of Chloe's childhood friends, Ann, who was often present in the home, and the testimony of defendant's brother, Jake, who also refuted portions of Chloe's story. In essence, whether the State could sustain its burden in this case was a close call and highly dependent upon Chloe's credibility. And each of the events to which I will briefly refer had a great tendency to tilt the playing field unfairly in the State's favor. Even if I were to agree that alone some of these circumstances are insufficient to require a new trial, I have no doubt they collectively prejudiced defendant's right to a fair trial. Therefore, I would reverse and remand for a new trial.
It was while being interviewed by a social worker at the juvenile detention center regarding her own unlawful conduct that the fifteen-year old Chloe first alleged sexual abuse, which she claimed occurred when she was between the ages of eight and eleven.
I start with the trial judge's ruling that the State was entitled to use defendant's six-year old conviction for fourth-degree resisting arrest to impeach defendant. Although I do not believe such a conviction sheds much, if any, light on the offender's credibility, I recognize that under existing case law, the use of such a conviction is a matter of discretion. State v. Lykes, 192 N.J. 519, 534 (2007). But, in a case that largely turns on the relative credibility of the alleged victim and the accused, there should be a more heightened concern than exhibited here about the admission of evidence that, for the most part, only theoretically illuminates the offender's credibility. In recognizing our role is to look only for abuses of discretion and not to decide the evidence ruling as if we were the trial court, I would nevertheless conclude it was an abuse of discretion to permit the State's utilization of this prior, unrelated, dissimilar offense. In my view, there can be no doubt that the probative value of the resisting arrest conviction was greatly outweighed by its prejudicial impact.
I would note that my colleagues and I are not very far apart on this point. In the majority opinion, they state that "one could legitimately argue the conviction should have been excluded because it was remote, and because its relevance to defendant's credibility was questionable" (slip op. at 35). We differ in that my colleagues choose not to second guess the trial judge's exercise of discretion, whereas in such a close case, I believe a reviewing court should be more willing to find a mistaken exercise of discretion.
The prosecutor further gilded this less than aromatic lily by suggesting to the jury that defendant was intoxicated when he resisted arrest. Interestingly, in arguing for the admission of defendant's prior conviction, the assistant prosecutor represented to the judge that he did not "intend to make a reference to the DWI," and argued defense counsel's concerns that he would couch the prior conviction "in terms of a DWI" were an overreaction because he would "self-sanitize" and not refer to DWI. Indeed, the assistant prosecutor agreed any reference to DWI would "clearly [be] prejudicial" in explaining why he would not refer to it. Upon securing the judge's ruling that the conviction could be used, and when the time came to cross-examine defendant about this prior conviction, the assistant prosecutor did not hesitate to ask: "Isn't it true, sir, you were intoxicated?" Although defense counsel objected before the question was answered, and a sidebar conference resulted in the sustaining of the objection with a direction to the jury from the judge not to consider that, this circumstance demonstrates how the judge's earlier ruling about the admission of the prior conviction leached into impermissible areas and had the potential for distracting the jury from the charges they were empaneled to decide, instead of this unrelated 2004 resisting arrest conviction. It also illustrates a chief theme of defendant's appeal, as well as this dissent, that the assistant prosecutor was more after a conviction than fulfilling his "duty . . . to prove the State's case based on the evidence" without "play[ing] on the passions of the jury or trigger[ing] emotional flashpoints." State v. Blakney, 189 N.J. 88, 96 (2006).
Second, while I concur with my colleagues' sound and thorough description of the limits on a prosecutor's advocacy, I believe the State's parading of Chloe into the courtroom during defense counsel's summation was deliberate, improper, and doubtless intended not only to distract the jury from counsel's arguments but also to invoke the jury's sympathy for her as an inappropriate basis for finding defendant guilty. Although my colleagues conclude that we should assume this event was accidental because there was no "competent evidence" that it was intentional, I would state the question in the opposite fashion and assume it was intentional because there was no evidence that Chloe simply wandered into the courtroom at that particular moment. Indeed, the record demonstrates and the State concedes that Chloe was brought into the courtroom by a representative of the prosecutor's office. When defense counsel objected, the assistant prosecutor did not assert that Chloe's entrance was merely a coincidence nor did he deny it was choreographed. Instead, the assistant prosecutor correctly -- but irrelevantly -- argued that Chloe had a right to be present in the courtroom. That was certainly true, but the prosecution did not have the right to distract the jury in this manner, which, as the majority notes, was not a first for this assistant prosecutor See slip op. at 29 (citing our unpublished opinion in State v. Mosby, No. A-3233-08 (App. Div. April 19, 2010)).
Although the Mosby opinion does not identify the assistant prosecutor who tried that case, the State has not denied defendant's contention that it was the same attorney who prosecuted this case. I concede the facts are somewhat different -- but not as different as defendant's resisting arrest conviction is from the charges asserted against him here.
My colleagues are unwilling to assume that this stunt was orchestrated by the assistant prosecutor. For the reasons I have mentioned -- the assistant prosecutor's prior bad act in Mosby, the fact that Chloe was escorted in by a representative of the prosecutor's office, and the assistant prosecutor's "non-denial denial" when defense counsel objected -- I am not willing to assume Chloe's entrance was an innocent or coincidental occurrence. Naivete has its limits. The circumstances can lead only to the conclusion that the State was responsible and, in a case as close as this, it was enough -- even on its own -- to require our conclusion that the bounds of advocacy were exceeded and warrant correction through the ordering of a new trial. See State v. Koskovich, 168 N.J. 448, 536 (2001) (holding that "prosecutors must avoid prejudicial and overly emotional or extraneous references at all stages of the criminal process").
The State argues in its appeal brief that we should conclude the episode was irrelevant because the child was brought into the courtroom by a representative of the prosecutor's office and not the assistant prosecutor. The State's point escapes me. Even were we to assume that the assistant prosecutor had so little control over the presentation of the State's case that something like this could occur without his knowledge -- an assumption that I think most prosecutors would deem insulting -- the extent of the assistant prosecutor's involvement in perpetrating this circumstance is irrelevant. It is the State's involvement that is relevant, and the record shows that one of the State's representatives ushered Chloe into the courtroom.
I also find it curious that the assistant prosecutor had Chloe in the courtroom as he argued that she "never wanted to come here" and relive these memories. One can only wonder why the prosecution would put her through the summations if there was this concern about her reliving these memories. But, I assume, this was also part of the prosecution's plan of suggesting to the jury that Chloe must have been telling the truth because she would have no other reason to be in the courtroom to hear the attorneys' accounts of the evidence.
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Third, the prosecutor improperly argued to the jury -- in reference to events in Chloe's life after the alleged offenses -- "[d]oes it surprise any of you that [Chloe], given her history of just a few years earlier, would end up in the juvenile system? Is that a real shocker?" The judge had limited the extent to which Chloe's brushes with the law could be explored during defense counsel's cross-examination of Chloe. The defense sought to explore the matter in much the same way that the prosecution was permitted to use defendant's prior criminal history against him, but with less success. Notwithstanding the judge having properly placed this information off limits, the assistant prosecutor was not deterred from suggesting to the jury that defendant's alleged victimizing of Chloe had led her on a path of unlawful conduct. This argument was not only irrelevant to the questions the jury was required to decide and not only without support in the record but was also highly inflammatory and prejudicial.
Fourth, in attempting to enhance Chloe's credibility, the assistant prosecutor improperly argued to the jury that it should consider that Chloe "testified in front of her grandparents, uncles, godfather." Although distinguishable, I would view what occurred here as hardly different from the summation condemned in State v. Farrell, 61 N.J. 99, 102 (1972), where the prosecutor, to bolster the credibility of a witness, referred the jury to the fact that, when the witness testified, "four characters" sitting in the courtroom "stared him down and intimidated him." As here, there was nothing other than counsel's later recollections as to who may have been in the courtroom when Chloe testified. Such a comment to the jury, as the Court said in Farrell, is "the equivalent of testimony by the prosecutor" and, when based on information outside the record, constitutes an inappropriate "tendency to enhance" the witness's "believability" because she testified in a stressful situation. Id. at 102-03.
Ultimately, my chief reason for dissenting is that I do not believe my colleagues -- in dismissing the significance of these circumstances or in the application of harmless-error principles -- have taken into account the fact that the State's proofs were far from overwhelming. As the Court held in Blakney, supra, 189 N.J. at 96-97, "[i]n determining whether a defendant has been denied a fair trial, we necessarily look to the significance of the trial errors in light of the evidence presented to the jury." Accordingly, error or prosecutorial misconduct, viewed individually or collectively, "cannot be viewed as harmless" "when cast against the less than overwhelming evidence supporting a . . . conviction." Id. at 97.
For these reasons, I would reverse and order a new trial. Because the majority has concluded otherwise, I respectfully dissent.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION