Opinion
DOCKET NO. A-4113-12T1
12-09-2014
STATE OF NEW JERSEY, Plaintiff-Respondent v. HERNE LACOSTE, a/k/a ANDRE LACOSTE, Defendant-Appellant.
Robert Carter Pierce argued the cause for appellant. James L. McConnell, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. McConnell, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Nugent and Accurso. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 11-11-0750. Robert Carter Pierce argued the cause for appellant. James L. McConnell, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. McConnell, of counsel and on the brief). PER CURIAM
Defendant Herne Lacoste (defendant) was tried along with defendant Shanikah S. Daniels (Daniels) on various charges, and convicted of kidnapping, aggravated assault, hindering and official misconduct, stemming from events that occurred late in the evening of October 15-16, 2011.
We reverse largely because, as evidence was adduced, it became clear that defendant was prejudiced by being tried jointly with Daniels. Specifically, the record reveals that the prosecutor did not interview the alleged victim, S.P., until after the trial commenced. The prosecutor then learned for the first time that S.P. was involved - along with Daniels and Markeesa Coleman - in an armed robbery occurring a few days earlier than the events in question, using the same weapon involved in the offenses charged here. Defendant sought to use this evidence pursuant to N.J.R.E. 404(b), but the judge denied him that opportunity, citing, among other things, the prejudicial impact of the evidence on Daniels.
Daniels was also convicted of various charges. She appealed, and we affirmed for reasons set forth in a separate opinion also filed today. State v. Daniels, No. A-5451-12.
We agree the other-crimes evidence regarding S.P.'s involvement with Daniels and Coleman in an earlier robbery using the same weapon would have prejudiced Daniels. But this evidence was beneficial to defendant, and its exclusion resulted mainly from the fact that the charges against defendant and Daniels were adjudicated in the same proceeding - something that undoubtedly would not have occurred had the other-crimes evidence been known and revealed to the defense prior to the start of the trial. We conclude that this circumstance warranted a mistrial and, among other things, the denial of that application compels our decision to order a new trial.
I
Many of the facts and circumstances surrounding the events of October 15-16, 2011, were disputed. In order that we sufficiently convey the implements of our decision, we briefly recount some of that evidence.
S.P., who was seventeen years old at the time, lived in a state-run residential program when she met Daniels. S.P. left the program to live with Daniels in Daniels' mother's East Orange home in early October 2011.
It appears Daniels was also in a dating relationship with defendant.
According to S.P., Daniels was controlling and would not let S.P. leave the house without permission. During the few weeks she lived in Daniels' mother's home, S.P. also became friendly with Coleman. Due to a quarrel about S.P. being out with another friend late in the evening of October 15, Daniels told S.P. she would have to leave. Consequently, S.P. rushed to the East Orange residence to obtain her property before Daniels threw it out as threatened. Before S.P. reached the residence, however, she was stopped by a vehicle driven by defendant; Daniels and Coleman were passengers.
S.P. testified that Daniels jumped out of defendant's vehicle while pointing a .38 caliber revolver at her. Daniels ordered S.P. into the vehicle; her belongings were in two tubs in the back of the vehicle. Defendant drove the vehicle away and after a short while, parked on a service road in Bridgewater. Defendant exited the vehicle and walked ten to fifteen feet away to urinate. Daniels then retrieved the handgun from the vehicle's console, pointed it at S.P., and demanded all her property. S.P. handed over her cellphone, two bus tickets and a scarf. S.P. was then ordered out of the vehicle, where she was beaten by both Daniels and Coleman. At some point, the two tubs containing S.P.'s belongings were thrown to the side of the road.
On cross-examination, S.P. testified she was "never forced . . . into the car at gun point or anything" and that she voluntarily entered the vehicle.
Because they had parked on the grounds of a large pharmaceutical company, events that followed were captured by one of the company's surveillance cameras.
Daniels and Coleman then punched and kicked S.P. According to S.P., defendant watched nearby. After this attack, defendant, Daniels and Coleman entered the vehicle, which then backed away, leaving S.P. behind. The vehicle soon returned, and Daniels and Coleman tried to coax S.P. to get back into the vehicle. She refused, and the two women again assaulted her. They again returned to the vehicle and drove away, leaving S.P. behind. According to S.P., she hid by a nearby school and watched as the vehicle repeatedly returned to the area. Eventually, S.P. approached a residence, where she called for police assistance.
II
Defendant, Daniels and Coleman were charged in separate indictments. Defendant was charged with: second-degree kidnapping, N.J.S.A. 2C:13-1(b); first-degree robbery, N.J.S.A. 2C:15-1; second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); fourth-degree violation of firearms regulatory provisions, N.J.S.A. 2C:39-9(d); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7); third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(a)(2); and second-degree official misconduct, N.J.S.A. 2C:30-2. With the exception of official misconduct, Daniels was similarly charged. Coleman was charged only with a single count of third-degree aggravated assault; she was admitted into pretrial intervention in exchange for her truthful testimony against defendant and Daniels.
As noted above, defendant and Daniels were tried together. The eleven-day trial included four days of deliberations during which the jury posed numerous questions for the court. The original trial judge fell ill on the sixth trial day and was replaced by another judge, who presided until a verdict was rendered.
Defendant was acquitted of the robbery offense and all weapons charges. He was convicted of kidnapping, aggravated assault, hindering, and official misconduct. The original trial judge sentenced defendant to: a seven-year prison term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the kidnapping conviction; a concurrent seven-year prison term, with a five-year parole ineligibility period, on the official misconduct conviction; and concurrent three-year prison terms on the other convictions.
Defendant appeals, arguing:
I. [HE] WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES DUE TO THE TRIAL COURT'S ERRONEOUS RULING THAT THE STATEMENT OF THE VICTIM TO THE PROSECUTOR THAT SHE PARTICIPATED IN AN ARMED ROBBERY WITH CODEFENDANTS DANIELS AND COLEMAN WHILE UTILIZING [DEFENDANT]'S HANDGUN WAS INADMISSIBLE.
II. THE TRIAL COURT ERRED BY DENYING [DEFENDANT]'S MOTION FOR A MISTRIAL AFTER THE PROSECUTOR DISCLOSED THAT THE VICTIM RECENTLY INFORMED HIM THAT THE THREE WOMEN COMMITTED AN ARMED ROBBERY OF A TAXI CAB DRIVER IN
FRONT OF CO-DEFENDANT DANIELS' HOME WITH [DEFENDANT]'S HANDGUN.We agree that the judge erred in denying defendant's motion for a mistrial due to the late discovery of other-crimes evidence beneficial to defendant, that the judge mishandled the alleged breach of the sequestration order, that expert testimony was improperly elicited, that the prosecutor's summation exceeded the bounds of propriety, and that the cumulative effect of these errors was to deny defendant a fair trial.
III. THE TRIAL COURT ERRED BY TESTIFYING TO THE JURY THAT "[A POTENTIAL WITNESS] WAS STARING AT [THE VICTIM] DURING HER TESTIMONY" DURING THE TRIAL COURT'S UNWARRANTED CURATIVE INSTRUCTION, WHICH DEPRIVED [DEFENDANT] OF A FAIR TRIAL.
IV. THE TRIAL COURT ERRED BY FAILING TO PROPERLY INSTRUCT THE JURY WITH CONSPIRACY AND MERE PRESENCE.
V. THE JURY PROCESS WAS TAINTED BECAUSE THE CO-DEFENDANT'S ATTORNEY DISCUSSED THE CASE WITH JUROR NUMBER ONE (The Jury Foreman) OUTSIDE OF THE COURTROOM DURING DELIBERATIONS (Not raised below).
VI. THE TRIAL COURT ERRED BY PERMITTING A POLICE OFFICER TO GIVE IMPROPER EXPERT TESTIMONY CONCERNING THE DISCRETION OF A POLICE OFFICER WHEN DECIDING WHETHER TO MAKE AN ARREST.
VII. THE TRIAL COURT ERRED BY PERMITTING MS. COLEMAN TO READ HER PRIOR STATEMENT DURING REDIRECT BECAUSE [HER] MEMORY OF THE EVENTS W[AS] NOT IMPAIRED.
VIII. THE TRIAL COURT ERRED BY NOT GRANTING [DEFENDANT]'S MOTION FOR A MISTRIAL AFTER THE ASSISTANT PROSECUTOR'S IMPROPER REMARKS DURING SUMMATION (Partially raised below).
IX. THE CUMULATIVE EFFECT OF THE ERRORS REQUIRES REVERSAL.
X. THE SENTENCE IMPOSED UPON [DEFENDANT] IS MANIFESTLY EXCESSIVE.
III
In examining defendant's Points I and II, we initially observe that at the conclusion of S.P.'s direct examination, the prosecutor advised the trial judge that he had met S.P. "for the first time" the day before, and that during this interview, S.P. "made reference to matters . . . outside the scope of discovery." Specifically, S.P. told the prosecutor that she, Daniels and Coleman had committed an armed robbery of a taxi driver a few days prior to the events in question. The prosecutor provided his interview notes to defense counsel in an attempt to ameliorate the surprise.
In the following colloquy, which continued when the parties returned to court on the next trial day, defendant argued that testimony regarding S.P.'s involvement in a prior robbery was admissible as other-crimes evidence and highly relevant to his defense. He further argued that if the evidence was excluded — due to its impact on Daniels — a mistrial was required. The judge rejected defendant's arguments, explaining that:
under the Cofield notion, this [c]ourt finds clearly and convincingly that the[] [testimony] would indeed prejudice not only [] Daniels, but has the effect [of] negatively impact[ing] [defendant] as well. The prejudicial value clearly outweighs the probative value.
State v. Cofield, 127 N.J. 328 (1992).
Assuming Cofield alone provides the template against which a defendant's use of other-crimes evidence is to be assessed, we would conclude that the judge erred. Cofield, which generally governs the admission of other-crimes evidence pursuant to N.J.R.E. 404(b), requires: consideration of the relevance of the evidence; whether the other crime is similar in kind and reasonably close in time to the offense charged; a determination that the evidence of the other crime is clear and convincing; and a finding that the probative value of the other-crimes evidence is not outweighed by its apparent prejudice. 127 N.J. at 338. Here, the relevance of the evidence lies in defendant's contention that Daniels, Coleman and S.P. were close friends and the October 15-16, 2011 incident was consistent with the type of disputes and circumstances in which the three women regularly engaged. The second factor, to the extent applicable, is supported by the fact that the other crime occurred a few days prior to the charged offenses and involved the use of the same weapon. The third factor requires a determination by the trial judge about whether the evidence of the other crime was clear and convincing. The judge conflated this third factor with the fourth, stating that he found "clearly and convincingly" that prejudice would flow from the admission of this evidence. Since the testimony was never elicited, the judge was not positioned to make a determination of the testimony's reliability, but the fact that S.P. was prepared to testify as to her involvement in another crime would suggest its reliability, because it was not in her interest to fabricate an incriminating story.
See State v. Rose, 206 N.J. 141, 163 (2011) (stating that "[t]he second prong of the Cofield test, addressing the similarity and temporality of the evidence, is not found in Rule 404(b), and is not universally required"); State v. Williams, 190 N.J. 114, 131 (2007) (recognizing the second factor's "usefulness as a requirement is limited to cases that replicate the circumstances in Cofield").
The fourth factor, of course, applied differently to defendant and Daniels. Admission of the other-crimes evidence would cause no ostensible prejudice to defendant because there was no allegation he was involved in the robbery of the taxi driver. But it certainly would have caused prejudice to Daniels because, according to what the prosecutor learned during his interview, S.P. was prepared to testify that Daniels was a participant in the earlier robbery.
In short, there is no doubt that a principled Cofield analysis permitted defendant's eliciting S.P.'s testimony about the taxi robbery and the use of the same weapon in its commission, and the judge erred in finding the testimony inadmissible.
Moreover, although the trial judge made no reference to it, a more permissive standard is applied when a defendant seeks to use other-crimes evidence defensively. That is, "a less stringent test of relevancy applies and prejudice to the defendant is not a factor." State v. Franklin, 384 N.J. Super. 306, 310 (App. Div. 2006) (citing State v. Garfole, 76 N.J. 445, 452-53 (1978)). As to relevance, the other-crimes evidence need only have a "rational tendency" to engender a reasonable doubt about an essential element of the State's case. State v. Fortin, 178 N.J. 540, 591 (2004) (quoting State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960)). For example, in State v. Parsons, 341 N.J. Super. 448, 458 (App. Div. 2001), we held that the defendant had a right to elicit evidence regarding a police detective's prior bad conduct, observing among other things that the detective's credibility would be a fair target if he were called as a witness for the prosecution. And, Garfole clearly held that prejudice is not a factor when other-crimes evidence is elicited by the defendant. 76 N.J. at 452.
For these reasons, we conclude that the trial judge erred insofar as he held inadmissible S.P.'s testimony regarding an earlier robbery in which she participated with Daniels and Coleman using defendant's handgun.
This dovetails with the additional error in denying a mistrial. That is, the judge was rightfully concerned about the prejudice to Daniels, but that would not have been a factor had defendant and Daniels been tried separately. Of course, severance was not previously sought because defendant did not know of S.P.'s participation in an earlier armed robbery with Daniels by the time the joint trial started. That discovery was not made until the prosecutor interviewed S.P. after the trial had commenced.
We agree that only a mistrial could have avoided this unfortunate Hobson's choice between the prejudice to Daniels if the testimony was elicited from S.P. and the prejudice to defendant if it was not, and we conclude the judge's choice of excluding this evidence was greatly prejudicial to defendant and deprived him of a fair trial.
IV
Defendant's right to a fair trial was also prejudiced when S.P. was cross-examined about the circumstances that resulted in her residing with Gerald Knox, a friend of Daniels. During a break in this testimony and outside the presence of the jury, the prosecutor expressed a concern about Knox being in the courtroom in violation of a sequestration order:
Unbeknownst to me or the [c]ourt, [Knox] has been sitting in the courtroom during the entire testimony today. The only time the witness has admitted on the witness stand when she lied was with regard to, quote unquote, Mr. Knox.In one sense, these comments seemed odd coming from the experienced prosecutor. That is, one can only wonder why, if the prosecutor knew Knox was in the courtroom "during the entire testimony," he made no quicker objection. In addition, he did not assert that Knox was staring or attempting to intimidate S.P., only that he "apparently" had been staring at her. Clearly, the prosecutor had no personal knowledge of the events.
Mr. Knox has apparently been staring at the witness. I think the jury is entitled to know that not only did Mr. Knox violate the order of sequestration by being in the courtroom, but he's staring at the witness, and [the jury] should be apprised of that when they take into consideration her testimony.
The answer to these perplexing concerns was soon provided by the judge, who stated: "[a]ctually, I brought it to your attention. I asked you to come to the bench and pointed it out." The prosecutor, who was likely unaware of Knox's presence or what Knox may have been doing while present, nevertheless insisted S.P. "has been intimidated." The judge asked whether the State wanted a mistrial, which the prosecutor eschewed, and their colloquy continued:
[THE PROSECUTOR]: I think I've been misled. That man should not have been in this courtroom staring at my witness while she is now backing up and admitting that she's told a false story with regard to him. I should have known that. The [c]ourt should have known that. You issued an order at my request, and he remained, and nobody —By this point in the colloquy, both defense counsel stated they would not call Knox as a witness. But the judge persisted, and in response to the prosecutor's request for a remedy, the judge ruled that Knox would not be permitted to testify. With that, the prosecutor said "[t]hen I sit down, Judge," suggesting the State was satisfied that Knox's elimination as a witness was a sufficient remedy.
THE COURT: Don't forge[t] the important piece, I brought it to your attention.
[THE PROSECUTOR]: And now I'm asking that the violation be remedied and the Court Rule allows for an instruction to remedy that violation.
That, however, did not end the matter for the judge. Again, the judge's comments reveal his own keen interest in what had occurred despite the lack of any additional request by any party:
THE COURT: I pointed out to you and I asked the officers to make an inquiry as to who he was and he was indeed attempting —The judge suggested in response that he could instruct the jurors that they could consider Knox's presence in violation of the sequestration order when evaluating S.P.'s testimony. As Daniels' attorney continued to argue there was nothing to suggest that Knox's presence had impacted S.P.'s testimony, the judge insisted that Knox "was attempting to [a]ffect her testimony."
[DANTELS' COUNSEL]: I didn't see it. I can't say if he did or didn't, but we have a whole bunch of witnesses here, I don't know if any of their presence intimidates her.
Defendant's attorney also argued against any instruction about this, asserting he did not know with what level of intensity or for how long, if at all, Knox had been staring at the witness. The judge responded, "[i]t was serious and severe." In addition, defendant's attorney asserted that Knox was not his witness and that any instruction would "taint[] the entire trial." Again, the judge imposed his own unshared view of what had occurred: "I was the one . . . [w]ho made the finding that the nature of that stare was clear . . ., it wasn't innocuous, it was an attempt to intimidate" the witness.
When the colloquy finally ended, the judge instructed the jury as to the scope and meaning of sequestration orders, and then, more specifically:
A gentleman has been seated in this courtroom directly behind . . . Daniels, during the entire direct testimony and cross-examination[.] That gentleman was staring at [S.P.] during her testimony.
Upon inquiry by the [c]ourt, I have been advised by defense counsel that the gentleman seated behind [Daniels] is Mr. Knox, the very person who is the subject of the cross-examination by both defense counsel.
Mr. Knox's name was placed on the witness list at the request of defense counsel. I am instructing you that neither the [c]ourt nor the State was aware that Mr. Knox was present in the courtroom during [S.P.'s] testimony, in violation of the [c]ourt's order of sequestration.
I'm . . . advising of the violation of the [c]ourt's order of sequestration. You, of course, are free to consider that violation when you evaluate the testimony of [S.P.] or any other witness in this case.
[Emphasis added.]
It is fair to conclude that this instruction was problematic on numerous levels. First, the judge advised the jury of a fact he had found — that Knox was staring at S.P. during her testimony. There is nothing in the record to suggest that anyone else — the prosecutor, defense counsel, defendants, the jury members or S.P. — noticed what it was that the judge saw. This problem, which defendant argues constitutes a violation of N.J.R.E. 605, was compounded by an instruction to the jury that defendants concealed Knox's presence — "neither the [c]ourt nor the State was aware that Mr. Knox was present in the courtroom" — without distinguishing between Daniels and Lacoste. In fact, Knox was not on defendant Lacoste's witness list, his attorney advised he had no intention of calling Knox, and there is nothing in the record to suggest that defendant or his attorney was involved in this purported violation of the sequestration order. The judge's instruction, however, lumped the two defendants together, unfairly prejudicing defendant Lacoste.
Moreover, we are deeply concerned that the judge's instructions provided the jury a reason, beyond what the jury members may have seen or heard, to further credit S.P.'s testimony. There is nothing in the record to suggest that the jury observed S.P. being "stared" at by Knox, let alone was the jury able to assess whether S.P. may have been affected by Knox's presence. Instead, the jury was told that the judge had made such a determination.
And the judge explained to the jury that this violation of the sequestration order could be weighed in considering not only S.P.'s credibility but also the credibility of "any other witness." Since defendant later testified, it is conceivable that the jury followed this instruction and held the sequestration violation against defendant when assessing his credibility.
This had the capacity to prejudice defendant, who was not shown to have any role in the circumstances. Had the charges against defendant and Daniels been tried separately, Knox would likely never have been present and the circumstance that caused the judge to tell the jury that it could be used to bolster S.P.'s credibility would likely never have occurred.
V
Defendant also argues that the jury was not properly instructed when it asked, during the third day of deliberations, whether defendant could be found guilty of aggravated assault by way of a vicarious liability theory. The judge simply answered "yes," as all agreed.
Defendant's agreement was less clear than the others. When the judge asked whether there was any objection to simply answering "yes" to the jury's question, defendant's attorney stated "Well, I do, but I understand the [c]ourt has to, at least, read it to them." The judge responded "[w]ell, I'm not reading anything to them, except answering — giving them a monosyllabic answer to the question." Defendant's attorney then expressed no further objection, stating only, "go ahead."
The next trial day, defendant's attorney expanded on his view of the jury's question. He argued that the judge's original instruction on conspiracy related only to the robbery charge and that no similar instruction was given with respect to the aggravated assault charge. In fact, the indictment did not charge defendant with conspiring to commit aggravated assault. At the conclusion of this argument, the judge declined the invitation to further instruct the jury.
After carefully reviewing the record, we find no error. Although the charge could have been more thorough with respect to the various factual bases on which defendant could be convicted of aggravated assault, including an accomplice theory — and we assume greater care will be exercised at the next trial — those principles were otherwise expressed during the course of the entire charge. Indeed, by posing the question, the jurors demonstrated they were not confused and were adequately instructed by the judge's simple affirmative response, to which all consented.
VI
Defendant additionally argues that jury deliberations were tainted by a brief discussion between the jury foreperson and Daniels' attorney. The record reveals that following a recess during the first day of deliberations, the judge dealt in open court with the jury's request that a portion of Coleman's testimony be replayed. When the matter was broached, both the prosecutor and Daniels' attorney expressed their assumption that the jury sought to hear again Coleman's audio statement. The following discussion then occurred:
THE COURT: All right. Let me inquire [whether] that's what they want.Nothing further occurred on this subject.
[DANIELS' ATTORNEY]: It is, Judge.
[THE PROSECUTOR]: That is the only other recording.
[DANIELS' ATTORNEY]: Juror number one basically told me it is.
THE COURT: Told you —
[DANIELS' ATTORNEY]: That is what she was looking for on the way up.
THE COURT: Juror number one told you? When was this?
[DANIELS' ATTORNEY]: As I was walking up the sidewalk.
THE COURT: Oh.
Certainly there should have been no communication between counsel and the juror. See R. 1:16-1. But, despite our consternation over this episode, no party objected or sought to have the judge make further inquiry of the attorney or the juror into what occurred and was discussed. Accordingly, we find the issue unreviewable.
VII
Defendant, a police officer, was charged with official misconduct. He contends the trial judge erred in permitting the State to elicit testimony from a twenty-year veteran of Raritan Borough that a police officer is obligated to make an arrest and file a report when witnessing the commission of a crime.
Specifically, while questioning Officer David Delesky about his involvement in the investigation, the prosecutor asked whether "there [are] any obligations on police officers to arrest people who commit crimes in their presence." The officer responded, "[t]o arrest them right away." Defense counsel objected. At sidebar, the prosecutor explained he was offering this testimony in response to defendant's opening statement, in which it was argued that police officers have discretion as to when to make an arrest. Defense counsel argued that the prosecutor was eliciting expert testimony, that no report or notice had been provided, and that this was not a proper area for expert testimony. The judge concluded that the prosecutor was entitled to ask this officer "about his understanding" of a police officer's duties. Accordingly, the judge permitted the following testimony:
Q. . . . What is your understanding as a [twenty]-year police officer with regard to your obligations to arrest persons who commit crimes in your presence?
A. If you see a crime being committed in your presence, you're obligated to take action and effect an arrest. Mandated.
Q. Do you have discretion under those circumstances to walk away?
A. No.
Q. Is that your understanding?
A. Yes.
Q. With regard to your understanding of the duty to report, do you have an understanding as to whether you have a duty to report crimes committed in your presence?
A. Yes, I do.
Q. And what is that, according to you?
A. You must make a report of this, that you observed.
Defendant is correct that this testimony was improper for a number of reasons. First, despite being couched in terms of the officer's own "understanding," the State was attempting to convey to the jury that, as a police officer, defendant was legally obligated to make an arrest during the October 15-16, 2011 events. Second, other than testifying he had been a police officer for twenty years, Officer Delesky was never qualified as an expert regarding the legal duties of police officers. Third, if the duties imposed on defendant at the time of the events in question were susceptible to a clear legal statement, it should have come from the judge during his charge to the jury, not through the testimony of an investigating officer, as occurred in State v. Corso, 355 N.J. Super. 518, 524 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003). Fourth, the Supreme Court has made it clear that it is improper to allow law enforcement witnesses to opine on a defendant's guilt in this fashion. State v. Odom, 116 N.J. 65, 82 (1989); see also State v. McLean, 205 N.J. 438, 461 (2011). And fifth, it was not shown how Officer Delesky's own "understanding" of a police officer's duties was relevant to the issues in this case; for example, there could be instances in which a law enforcement witness may be asked for an understanding of a legal duty as a means of illuminating actions taken by the witness, but here the officer was gratuitously asked for his "understanding" as a means of conveying to the jury the duty imposed by law on defendant at the time of the events in question.
The judge's charge on this point — to which there was no objection and as to which no argument is asserted in this appeal — is somewhat inconsistent because, while informing the jury that a police officer has a duty to arrest a person committing a crime within the officer's presence, the judge also left it to the jury to determine beyond a reasonable doubt whether defendant "was required to act by law or by the nature of his duties as a police officer." In this latter respect, the jury could have been influenced by Delesky's own "understanding" of a police officer's duties.
Defendant was prejudiced by the admission of this opinion testimony.
VIII
Defendant argues that the prosecutor engaged in misconduct during his summation when he laughed repeatedly while referring to defendant's testimony and his defenses. He also claims that the prosecutor exceeded the proper bounds of advocacy when he referred to matters not supported by evidence in order to evoke sympathy for S.P.; that is, the prosecutor argued to the jury that S.P. was a seventeen-year-old girl with a troubled past who relied on the Division of Youth and Family Services (the Division), "which unfortunately does not get enough funding and is probably not as high level as they should be or could be because of the lack of funding." Defendant objected to both events. The judge found the first to be insufficient to warrant a mistrial or any further action on his part, and he did not respond to the other objection.
We can discern no clear understanding from the judge's brief response to the objection about the prosecutor's laughter whether the judge thought the objection had merit:
In regard to the motion for mistrial, I do not see the summation of [the prosecutor] as amounting to prosecutorial misconduct. That he laughed aloud, I think, underscored audibly what he was denigrating about the defense theory of the case verbally.By saying the prosecutor was "denigrating" the defense theory, it would appear the judge found merit in defendant's objection. Indeed, prosecutors are not permitted "to cast unjustified aspersions on defense counsel or the defense." State v. Frost, 158 N.J. 79, 86 (1999) (quoting State v. Lockett, 249 N.J. Super. 428, 434 (App. Div.), certif. denied, 127 N.J. 553 (1991)). Defense counsel, as the Court observed in Frost, are not to be disparaged or denigrated for simply doing their job. Ibid.
[Emphasis added.]
Whatever he thought about the propriety of the prosecutor's rhetorical laughter, the judge did not grant a mistrial and gave the jury no specific instruction about the summation.
As to the second objection, we recognize that prosecutors, as well as defense counsel, are not permitted to comment in summation about facts not in evidence. State v. Farrell, 61 N.J. 99, 102 (1972). There was no evidence in the record that would support the prosecutor's argument here that the Division was underfunded or that it had otherwise disserved S.P. This argument, designed to evoke sympathy for S.P., was improper, and the judge was obligated to specifically instruct the jury that it deserved no place in their deliberations.
In attempting to bolster S.P.'s credibility, the prosecutor made further use of the judge's own statement of facts regarding Knox's presence in the courtroom:
The only quote lie, if you will, that [S.P.] has told and she's admitted to was with regard to that man Mr. Knox who sat in the front row behind Shanikah Daniels, and nobody in this court, not the State, and not the [c]ourt, we never knew he was there. Her testimony, the quote lie that she admitted only related to him. The judge gave you an instruction that that was improper. That never should have happened. He should never have been in this courtroom.
We said many years ago that "instances of prosecutorial excesses . . . seem to come to [our appellate courts] with numbing frequency." State v. Watson, 224 N.J. Super. 354, 362 (App. Div.), certif. denied, 111 N.J. 620, cert. denied, 488 U.S. 983, 109 S. Ct. 535, 102 L. Ed. 2d 566 (1988); see also Frost, supra, 158 N.J. at 88. The parade, however, continues, see State v. Rivera, 437 N.J. Super. 434, 443-53 (App. Div. 2014), and it seems little we have said has deterred these excesses.
Although we do not find these circumstances sufficiently egregious to alone warrant a mistrial, we conclude that defendant's right to a fair trial was prejudiced by the prosecutor's comments and the judge's failure to specifically discuss those transgressions with the jury.
IX
Although some of the errors we have described, standing alone, do not necessitate a new trial, we conclude that the cumulative effect of all these errors deprived defendant of a fair trial. See State v. Orecchio, 16 N.J. 125, 129 (1954). Because a new trial is warranted, we need not consider the argument in Point VII regarding the manner in which Coleman's recollection was refreshed or the argument in Point X, in which defendant contends the sentence imposed was excessive.
Reversed and remanded for a new trial. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Defendant's attorney had previously been overruled when he objected to the jury being advised of what the judge said he saw in the courtroom. Because we have held that the jury should not have been so advised, the prosecutor's argument regarding the Knox situation was also prejudicial, although the prosecutor's comments were certainly in accord with the parameters set by the judge.