STATE OF NEW JERSEY v. TIMOTHY A. PAZIORA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1396-08T41396-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY A. PAZIORA,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 24, 2010 - Decided

Before Judges Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 07-05-0205.

Dickstein & Scutti, attorneys for appellant (Gilbert J. Scutti, on the brief).

Dermot O'Grady, Acting Hunterdon County Prosecutor, attorney for respondent (Bennett A. Barlyn, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial by jury, defendant Timothy A. Paziora appeals from his October 3, 2008 conviction on charges of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4 (count three). After appropriate merger, the judge sentenced defendant to a fifteen-year term of imprisonment on count one, concurrent to a seven-year term of imprisonment on count two. The conviction arose from defendant's digital penetration of his girlfriend's daughter and his touching of the child's vaginal area when she was ten years old.

On appeal, defendant raises the following claims:

I. BY TELLING THE JURY THAT DEFENSE COUNSEL KNEW HIS CLIENT WAS GOING TO BE FOUND GUILTY AND BY MISCHARACTERIZING THE EVIDENCE, THE PROSECUTOR'S CLOSING ARGUMENT CROSSED THE LINE OF PROPRIETY AND PREJUDICED THE DEFENDANT (ANSWERED IN THE NEGATIVE BY THE LOWER COURT).

II. THE PROSECUTOR BREACHED HER ETHICAL OBLIGATIONS BY PRESENTING MISLEADING TESTIMONY FROM ANGELA BENNETT AND THEN MAKING THAT TESTIMONY THE CENTERPIECE OF HER CLOSING ARGUMENT (ANSWERED IN THE NEGATIVE BY THE LOWER COURT).

III. DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL BY VIRTUE OF HIS TRIAL COUNSEL'S FAILURE TO INVESTIGATE [THE ALLEGED VICTIM'S] MENTAL HEALTH HISTORY AND HIS FAILURE TO OBJECT TO THE PROSECUTOR'S CONTINUING DEPICTION OF THE TESTIMONY OF HER WITNESSES AS CORROBORATIVE OF THE TESTIMONY OF [THE ALLEGED VICTIM] (NOT PRESENTED TO THE LOWER COURT).

Although we do not agree with defendant's precise characterization of the prosecutor's conduct as expressed in defendant's point headings, we do agree that the prosecutor's summation exceeded the bounds of legitimate advocacy. We reverse defendant's conviction. In light of that disposition, we need not reach the ineffective assistance of counsel claim that defendant advances in Point III or the Brady violation he discusses in Point II.

I.

After her parents' separation in January 2009, Kate lived with her mother, Angie, and her brother, Leo. In June 2000, Angie met defendant in an online chat room. Shortly thereafter, defendant, who lived in Williamsport, Pennsylvania, began staying at Angie's home with Angie, Kate and Leo, often remaining from two to ten days. According to Kate, she and Leo sometimes stayed in the house with defendant for approximately two hours after school until their mother returned home from work. Leo, however, was frequently at his girlfriend's house after school, rather than at home with his sister and defendant.

Sometime between September and December 2000, when Kate was ten years old, defendant summoned her into her mother's bedroom while she and defendant were alone in the home. He patted the bed as an instruction that Kate sit next to him, which she did. Defendant placed his hand on her knee and moved it up her thigh while repeatedly assuring her that it was "O.K." Kate told defendant he "shouldn't be doing that" and walked out of the room.

On another occasion, during the same time period, Kate was sitting on the living room couch when defendant suddenly sat down next to her, blocking her movement with his legs. As before, he placed his hand on her knee and moved his hand up her thigh, but this time he inserted his fingers into Kate's vagina. Afterward, defendant warned Kate that if she told anyone what he had done, he would "do something to [her] family." A few weeks later, defendant again digitally penetrated Kate and again threatened to harm her family if she disclosed what he had done.

On the weekend immediately following Thanksgiving 2000, Kate tearfully told her father that she did not want to return to her mother's home and wanted to live with him and his wife, Jennifer. Even after she moved into his home, Kate's father never asked her to explain why. According to Kate's trial testimony, once she moved in with her father and Jennifer, the incidents with defendant were "like pushed in the back of [her] mind so [she] didn't ever think about it."

Not until 2006, some six years later, did Kate reveal what defendant had done and why she had decided to leave her mother's home. When Kate was nearly sixteen years old, Jennifer found a letter from Kate's boyfriend in which he described their sexual activity. Jennifer "confronted" Kate about the contents of the letter. During that same conversation, Jennifer told Kate that she had been reading text messages on Kate's cell phone and was concerned "about the [sexual] content of those messages."

According to Jennifer's trial testimony, she had become concerned about Kate's emotional well-being a few months before her conversation with Kate about the letter and text messages. Kate, who had usually been extremely outgoing and friendly, had become moody and withdrawn. During their conversation about the letter and the text messages, Jennifer asked Kate why she was "so totally different," at which point Kate "broke down" crying. When Jennifer asked whether anyone had molested her, Kate was unable to answer aloud, but wrote the name "Tim" on a newspaper and handed it to Jennifer.

By then, Kate, her father and Jennifer had moved to Virginia. On April 28, 2006, Jennifer contacted Hunterdon County authorities to report Kate's allegations. Patrolman Brian Griffiths, along with Detective Neiber of the Hunterdon County prosecutor's office, traveled to Virginia to take statements from Jennifer and Kate.

The investigation of Kate's allegations included an interview with Angie, during which she supplied police with a calendar in which she had recorded each of the occasions that defendant had stayed overnight in the home with her, Kate and Leo.

Defendant testified, denying that he had ever touched Kate inappropriately or that he had ever inserted his finger into her vagina. He also denied that he was ever alone in the house with Kate. On cross-examination, defendant generally agreed that the events recorded on Angie's calendar were accurate. Defendant also acknowledged that at some point after Kate moved out and began living with her father, he decided to "calm down" his relationship with Angie. He testified that his relationship with Angie ended in April 2001.

Defendant called three character witnesses, Edward Bremme, who was defendant's friend and Alcoholics Anonymous sponsor; Adelane, his former wife, whom he had not seen in more than ten years but who testified that he was an honest person; and Kimberly Adams, his current girlfriend, who testified to defendant's reputation for honesty. By the time of trial, Adams had been involved with defendant for approximately six years. On direct examination, when asked whether she had any children, Adams responded that she had one son and two daughters. Her daughters were eleven and fourteen years old.

While the jury was deliberating, the prosecutor and defense counsel engaged in what the prosecutor described as a "light and friendly" conversation. During that conversation, the prosecutor asked defense counsel why he had not asked Angie on cross-examination about her two three-way sexual trysts that involved defendant, herself and another partner. Defense counsel responded by saying that his client had not told him about those incidents.

Further discussion between the prosecutor and defense counsel established that although the trysts had occurred after Kate had left her mother's home and had moved in with her father, the incidents had occurred long before the trial began, yet they did not appear on Angie's calendar.

Upon learning of these trysts, defense counsel filed a motion for a new trial, arguing the fact that these encounters occurred after Kate moved out contradicted the State's theory that defendant lost interest in Angie after her daughter moved out. Defense counsel also argued that Angie's failure to note these events on her calendar showed that, contrary to the State's assertions, Angie had not listed on her calendar each of her contacts with defendant. The defense therefore argued that the information in question was exculpatory and that the prosecutor's knowing failure to reveal this information to defendant constituted a Brady violation that entitled him to a new trial. Defendant's new trial motion also included a claim that the prosecutor's closing argument was so inflammatory as to deny him a fair trial.

In opposition to defendant's new trial motion, the assistant prosecutor filed a certification in which she discussed the circumstances under which she had first learned about the trysts. During the week before trial, defense counsel told her that his client had told him that Angie "cheated on him" with other men during the time she was dating him. The prosecutor became concerned "that the defense may try to discredit [Angie] by accusing her of having other men at the home when her children were present." During pretrial preparation, the prosecutor therefore asked Angie about sexual encounters with others, and Angie confirmed that she had been involved in two separate sexual encounters with defendant and another person, once another man and once another woman. The prosecutor maintained that she and Angie did not discuss whether Angie had marked these trysts on her calendar.

The prosecutor admitted in her certification that she did not provide this information to defense counsel in discovery, either prior to or during the trial. According to the prosecutor's certification, the issue finally came up during her "light and friendly" conversation with defense counsel while the jury was deliberating. The prosecutor's certification concluded with an account of her post trial attempts to learn more about these trysts from Angie and her belief that Angie's calendar may have alluded to one of the three trysts.

After hearing argument, the judge rejected defendant's claim of a Brady violation, ruling that "the new evidence was fully known to the defendant, was not favorable to the defense, nor [would] it appear to be material or relevant." The judge likewise rejected defendant's claim that the prosecutor's summation violated the standards established by the applicable caselaw.

II.

We turn to Point I, in which defendant claims the prosecutor's summation includes numerous instances of prosecutorial misconduct that entitled him to a new trial.

The Court has recognized the latitude afforded prosecutors in summation:

We have consistently recognized that prosecutors are afforded considerable leeway in their closing arguments. Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries. However, the primary duty of a prosecutor is not to obtain convictions, but to see that justice is done. Thus, a prosecutor's duty is twofold: a prosecutor must refrain from improper methods that result in a wrongful conviction, and is obligated to use legitimate means to bring about a just conviction.

[State v. Smith, 167 N.J. 158, 177 (2001) (internal citations and quotations omitted).]

Our own jurisprudence includes similar observations about a prosecutor's right to "'sum up the State's case graphically and forcefully.'" State v. Lockett, 249 N.J. Super. 428, 435 (App. Div.) (quoting State v. Johnson, 31 N.J. 489, 510-11 (1960)), certif. denied, 127 N.J. 553 (1991). A prosecutor is "not expect[ed] . . . to perform this burdensome obligation with the daintiness of a participant in a minuet." Id. at 435.

However, there are limits on a prosecutor's right to sum up forcefully:

[A prosecutor] may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

[State v. Spano, 64 N.J. 566, 569 (1974) (internal quotation and citation omitted).]

Not every instance of prosecutorial misconduct will be grounds for reversal. State v. Frost, 158 N.J. 76, 83 (1999). Only where the prosecutor's misconduct "was so egregious that it deprived the defendant of a fair trial" will reversal be required. Ibid. In determining whether a prosecutor's conduct meets that standard, a reviewing court:

must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred. Specifically, an appellate court must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action.

[Id. at 83-84 (internal citations and quotations omitted).]

Over the years, both the Supreme Court and this court have established specific limits for a prosecutor's summation. We turn to a review of those boundaries.

A. Asking the jury to draw inferences not warranted by the evidence

One such limit is a prosecutor's obligation to confine his

or her arguments to the evidence and the reasonable inferences to be drawn therefrom. State v. Feaster, 156 N.J. 1, 58-59 (1998). Indeed, it is unprofessional conduct for "the prosecutor [to] intentionally . . . mislead the jury as to the inferences it may draw." ABA Standards for Criminal Justice 3-5.8(a) (3d ed. 1993).

Among the instances in which reviewing courts have condemned a prosecutor for mischaracterizing the evidence or for urging the jury to draw inferences that are not supported by the evidence are the following: commenting to the jury that the State could not have provided leniency to a State's witness because that witness "was part of" the murder, when no testimony supported that assertion, and where such an assertion led to the objectionable inference that the witness had no incentive to testify falsely for the State, State v. Wilson, 128 N.J. 233, 242 (1992); asking the defendant on cross-examination if he had previously been convicted of possession of cocaine when the prosecutor knew defendant had only been convicted of unlawful possession of prescription medication, Lockett, supra, 249 N.J. Super. at 433; knowing it to be untrue, asking the defendant if the car he was driving was stolen by him from his mother, ibid.; and stating in summation that the defendant "smile[d]" after striking the victim with his automobile, when the record contained no such proof, id. at 434.

With these principles in mind, we turn to a review of the prosecutor's comments about Angie's calendar, which defendant contends misstated the evidence in the record. In her summation, the prosecutor repeatedly claimed that Angie's calendar "verified" and "corroborated" Kate's testimony. She argued:

The defense . . . said this is a he said, she said case, and that's not enough, that's not sufficient. I submit to you, ladies and gentlemen, it's not just a he said, she said case. It's a he said, Timothy Paziora, versus a she said, [Kate], Angie [], Jennifer [], Leo [], and what a thing said, a document. And that powerful corroborative evidence in this case exists, Angie's calendar. That's the corroborative evidence, coupled with the witnesses that you heard from in this case and that is sufficient to prove these elements beyond a reasonable doubt. (Emphasis added).

Verify. This is the verification of each and every incident, every situation. This is the corroboration. This is the verification.

That's what [Kate] told the detectives. And did they verify? Yes. They . . . went to the verification, the calendar. They went to that packrat, Angie [], that probably for the first time, she and others are happy that she saves everything and she writes down everything that she does in her life. That was the corroboration. (Emphasis added).

And Angie, the packrat, pulled out that corroboration and she opens it up and there it is. There it is, ladies and gentlemen, and you'll have this in the jury room, the deliberation room. There it is, June of 2000, . . . June 13, "Tim and I met online." . . . That's the verification. That's your corroboration. (Emphasis added).

[P]owerful corroborative evidence. And that's what we have with that calendar and you will be able to go through, and I want to talk to you about some other entries, but go through and see when is Tim there, when did he leave, when is it Angie's weekend?

And think about the evidence and about how Angie went off to work and he was there when [Kate and Leo] . . . came home from school, in the summertime, because she was out working and, again, verification. The calendar has various different jobs. . . . It's all here. It's all in here. (Emphasis added).

[A]nd [Angie] explained every entry that [defense] counsel asked her about. Even some that were a bit embarrassing. She explained everything and it's all in there. So that the calendar and witnesses, look at anything you need to look up, anything that was talked about, it's in there. That's the verification. That's the corroboration. And compare Angie to the defendant in terms of testimony, in terms of credibility and believability. Each and every time, [Angie] confirmed things that went on. She had her calendar. . . . Check each time any bit of information, the facts. Check it. Check that calendar to confirm and verify. (Emphasis added).

And the calendar. We should go back to the calendar. You'll be able to look at each and every month when that opportunity was there. Each and every month when you see [Angie] weekend or . . . when Tim and the children were in the house. The opportunity -- you'll see all of those months the opportunity that was there, not only on the weekends but sometimes during the week.

Where was Angie working and when? That's in there. He didn't, at first, know or recall when she . . . wasn't getting home [until] late at night. You'll see it in the calendar.

Defendant maintains that the prosecutor's remarks unfairly "attempt[ed] to create the illusion that [Kate's] story was corroborated by witness testimony and her mother's calendar." Defendant maintains that such an argument "completely distorted the evidence in the case" because the calendar did not in any way verify Kate's contention that defendant sexually assaulted her on the three days in the fall of 2000. Instead, according to defendant, the calendar merely "confirmed the acknowledged fact that there were times that defendant stayed at [Kate's] house." The State urges us to reject defendant's arguments concerning the calendar, arguing that defendant's arguments are "predicated on rank hyperbole and willful misinterpretation" of the record. In particular, the State asserts that "with one exception," during which the prosecutor "inadvertent[ly]" made a "misstatement," each of the prosecutor's references to Angie's calendar were fair and accurate.

The prosecutor's comments about the calendar "verifying" and "corroborating" Kate's allegations are of two types. In some portions of her closing, the prosecutor broadly claimed that Angie's calendar was "powerful corroborative evidence" that verified "each and every incident, every situation. This is the corroboration." Such comments were clearly improper because, as defendant correctly argues, the calendar did not corroborate Kate's allegations. It merely verified that defendant stayed overnight at Angie's home. Therefore, to the extent that the prosecutor suggested to the jurors that they should use the calendar to "check each time" and use the calendar "to confirm and verify" Kate's allegations, the prosecutor mischaracterized the evidence and urged the jury to draw an improper inference. Quite simply, the calendar did not verify the alleged victim's accusations.

On the other hand, there were a few instances in which the prosecutor more narrowly described the use the jury could make of Angie's calendar. For example, she urged the jury to look at the calendar to see the days when Kate was home from school and Angie "was out working." That limited use of Angie's calendar was proper because defendant denied in his testimony that there were ever any occasions when he had been alone with Kate. Urging the jury to use the calendar to disprove defendant's testimony was a fair and permissible use of the calendar.

Thus, although there were some occasions in which the prosecutor's use of the calendar was fair, and in which the prosecutor asked the jury to draw inferences that were reasonably based upon the evidence, such occasions were in the distinct minority. A review of all of the prosecutor's references to Angie's calendar demonstrates that the instances where the prosecutor asked the jury to draw the improper inference that the calendar corroborated Kate's allegations vastly exceeded the instances where the prosecutor's references to the calendar were proper. For that reason, the prosecutor's arguments respecting the calendar ran afoul of the limits the Court established in Feaster, supra, 156 N.J. at 58-59, because the prosecutor asked the jury to draw inferences that were not supported by the evidence.

Our review of the calendar issue is complicated by the fact that defendant never objected to the prosecutor's remarks about Angie's calendar "verifying" and "corroborating" Kate's accusations. For that reason, the judge had no opportunity to issue a curative instruction or in any way address the impropriety. As the Court observed in Frost, "[t]he failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Supra, 158 N.J. at 84. Nonetheless, despite the lack of objection, we view the remarks as highly prejudicial, especially in light of the intensity of the prosecutor's remarks and the sheer number of times she repeated them.

If the prosecutor's improper remarks in summation were confined to her arguments respecting Angie's calendar, we might be inclined to treat them as harmless in light of defendant's failure to object; however, the prosecutor's summation was rife with other instances of improper argument. We turn now to a discussion of other portions of her closing argument.

B. Denigrating defense counsel

A prosecutor is prohibited from denigrating defense counsel or impugning counsel's integrity. Id. at 86 (criticizing a prosecutor's description of defense counsel's closing as mere "lawyer talk"); State v. Acker, 265 N.J. Super. 351, 356 (App. Div.) (condemning prosecutor's statement that the defense closing was "absolutely preposterous" and "outrageous"), certif. denied, 134 N.J. 485 (1993); State v. Pindale, 249 N.J. Super. 266, 286 (App. Div. 1991) (observing that it was improper for prosecutor to argue that defense counsel's role "in this case is to try to confuse you"); Lockett, supra, 249 N.J. Super. at 434 (criticizing the comment that when a defense attorney knows the evidence is "overwhelming," defense counsel cannot tell the jury to examine the evidence, but will instead urge the jury to "look at some smoke in the corner of the room"); State v. Sherman, 230 N.J. Super. 10, 16 (App. Div. 1988) (criticizing prosecutor's argument that defense would "use certain courtroom maneuvers to work on you" because "[t]he first defense is the defense of confusion" and also criticizing prosecutor's remark that "they're guilty . . . and they [the two defense attorneys] know it").

Here, defendant points to two distinct instances where the prosecutor denigrated defense counsel and impugned his integrity before the jury. The first occurred at the beginning of the prosecutor's summation, when she argued that defense counsel knew the verdict is "going to be guilty:"

Now, [defense counsel] said in his . . . opening that you need to rely on believability, what makes sense, credibility, what people say, whether they're consistent, when they come up and they come and tell you what happened and how they were involved. . . . Well, now, he softened that a bit because he can't really go with believability and credibility and consistency . . . because he knows, after listening and hearing from his client versus [Kate] and the other State's witnesses, that it's going to be guilty (emphasis added).

At that point, defense counsel asked for a sidebar. At sidebar, he asserted that the prosecutor "can't make any comments about my defense and the position I take and guilt or innocence . . . . I am not the focus of this trial." The judge's only response to defense counsel's objection was an instruction to the prosecutor to "rephrase it." The judge commented that the prosecutor's remarks did not warrant a curative instruction. Instead, the judge simply instructed the prosecutor at sidebar to "just go on from there." At that point, the sidebar ended. The judge did not instruct the jury to disregard the prosecutor's remark or in any other way express to the jury a disapproval of the prosecutor's argument.

We begin our analysis by comparing the prosecutor's remarks to those we condemned in Lockett, where the prosecutor argued:

It is typical when the best defense counsel, when the evidence is so overwhelming that it really makes your gut wrench, what do you do, you don't say look at the evidence, you say look over in the corner of the room, by God, look at some smoke in the corner of the room. . . . You say look at the smoke over here, because I don't want you to look in this direction, I don't want you to look at defendant's conduct, I don't want you to look at the circumstances of the case, I don't want you to look at the facts because, if you look at the facts, I'm crushed. My defendant is guilty.

[Lockett, supra, 249 N.J. Super. at 434 (emphasis added).]

In Lockett, we concluded that these remarks were an "unjustified aspersion[] on defense counsel's motives." Ibid. That error, among others, deprived defendant of a fair trial and required the reversal of his conviction. Id. at 436.

We view the prosecutor's remarks here -- "he can't really go with believability and credibility and consistency . . . because he knows after listening and hearing from his client . . . versus the State's witnesses that it's going to be guilty" -- as strikingly similar to the argument we condemned in Lockett. Here, the prosecutor essentially argued that the State's case was so strong that defense counsel had no alternative to urging the jury to avoid considering the State's evidence because, if the jury accepted the testimony of the State's witnesses, "it's going to be guilty." That remark is virtually identical to the prosecutor's comment in Lockett that defense counsel did not want the jury to look at the facts "because, if you look at the facts, I am crushed. My defendant is guilty." Id. at 434.

As in Lockett, the prosecutor's statement here that defense counsel knew his client was guilty casts unfair aspersions on defense counsel. Such an argument suggested to the jury in no uncertain terms that defense counsel was knowingly representing a guilty man. This unwarranted attack on defense counsel unfairly impugned his integrity and demeaned him and is therefore an instance of prosecutorial misconduct.

The State agrees that the prosecutor's remark, "he knows . . . it's going to be guilty," was "better left unsaid." The State maintains, however, that any harm resulting from the prosecutor's ill-advised remark was completely erased when, at sidebar, the judge directed the prosecutor to "rephrase" her remarks. We disagree. Defense counsel promptly objected, the judge overruled counsel's objection and refused to give a curative instruction to the jury. The jury was not even aware that the judge told the prosecutor to "rephrase" her argument. Applying the three-prong standard of Frost, we conclude that defendant has established all three criteria for the granting of a new trial: the remark was highly improper; defense counsel objected promptly; and the judge refused to intervene. Frost, supra, 158 N.J. at 83.

The second incident that defendant criticizes as denigrating his attorney occurred when the prosecutor told the jury that one of the arguments defense counsel presented was "frankly close to preposterous." The prosecutor said:

Now, ladies and gentlemen, what would the defense have you believe in this case? Let me take for a moment the fall guy theory that I'll call it, because in [defense counsel's] opening, it was referred to as [defendant] was the fall guy. . . . The fall guy theory, I submit to you, . . . doesn't make sense. It's not common sensical. It's not believable. It's frankly close to preposterous. It doesn't make sense when you think about it[.] (emphasis added).

We deemed a prosecutor's use of the word "preposterous" to be prosecutorial misconduct in Acker, supra, 265 N.J. Super. at 356. Here, although the comment was improper, defense counsel did not object, and by failing to do so gave the judge no opportunity to intervene. Were this the only objectionable aspect of the prosecutor's summation, we would be inclined to overlook it, but it is part of an accumulation of errors that we have already discussed. And there are more.

C. Accusing defendant of committing other, uncharged crimes

We turn to another section of the prosecutor's summation, in which, according to defendant, the prosecutor insinuated that he was guilty of other, but uncharged, crimes. In particular, toward the end of her closing, the prosecutor argued that once Kate moved in with her father shortly before Christmas 2000, defendant began to "chill out" his relationship with Angie. The prosecutor argued:

He meets Angie online who has a daughter, a ten-year-old daughter. He meets Kim online and she's got two teenage daughters. And [Kate] is gone and so is the relationship with Angie. He's chilled out and then ["]I'll move on to my next relationship.["]

Defendant argues that the reference to Kim's two teenage daughters was entirely gratuitous and served no purpose other than to insinuate that defendant initiated a relationship with Kim only so that he could prey upon her two teenage daughters in the same way as he had preyed upon Kate.

The State argues that the reference to Kim's daughters was a "solitary and intrinsically oblique reference" that had no capacity to "inflame" the jury or distract them from their solemn responsibility of objectively finding the facts. The State also contends that the lack of any objection from the defense at trial demonstrates that the prosecutor's remark was innocuous.

A prosecutor must confine his or her summation to the evidence heard by the jury. Feaster, supra, 156 N.J. at 58-59. A prosecutor is prohibited from suggesting that a defendant intended to commit other crimes with which he had not been charged. The prosecutor's comments unfairly cast defendant as a serial child molester who blithely moved from one victim to another.

There would likely have been nothing wrong if the prosecutor confined her remarks to an argument that once Kate left Angie's home to move in with her father, defendant ended his relationship with Angie because Kate was no longer available to him. That argument would probably have been a fair inference from the facts. But to argue, as the prosecutor did here, that once Kate was gone, defendant, in effect, moved on to new territory, namely Kim's daughters, is a wholly improper effort to prejudice defendant by suggesting his intent to engage in other crimes.

This is improper for two reasons. First, defendant was never charged with the sexual victimization of Kim's daughters. Second, it urges the jury to engage in unwarranted and unfair speculation. Therefore, the prosecutor's comment that defendant began a relationship with Kim, who had two teenage daughters, accomplished nothing other than impermissibly suggesting an intent to commit future crimes with those two girls. A prosecutor's arguments must be confined to the evidence before the jury. Ibid. A prosecutor may not invite the jury to speculate. See State v. Butler, 27 N.J. 560, 595 (1958) (observing that the "criminal law cannot be administered justly . . . if the jury is allowed to speculate"). The prosecutor's argument significantly violated that limitation and was therefore yet another instance of prosecutorial misconduct.

D. Appealing to the jury's sympathy for the alleged victim

Defendant's final contention regarding prosecutorial misconduct involved the prosecutor's argument that the jury should "come back with a verdict that will tell [Kate] that she came forward . . . for a good reason" and that her "long path" back to New Jersey "was not in vain." The prosecutor argued:

Ladies and gentlemen, I ask you, when you listen to that law and you judge the facts as you heard them and as you see them on that verification and corroboration calendar, that you come back with a verdict that will tell [Kate] that she came forward and she came forward for a good reason and she stuck to her guns and she continued to come here to tell you what happened to her, that her long path from Raritan to Virginia to back here again was not in vain, and he may have hurt her then but it won't happen anymore. No more opportunity for Tim Pazi[o]ra.

Defendant maintains that these remarks were not a comment on the evidence but were instead a blatant and impermissible appeal to the jury's sympathy for the alleged victim. The Court recently spoke on that issue in State v. Blakney, 189 N.J. 88, 96 (2006), where the Court observed that the prosecutor's duty is to prove the State's case based on the evidence and "not to play on the passions of the jury or trigger emotional flashpoints, deflecting attention from the hard facts on which the State's case must rise or fall."

We are not convinced that these "tell [Kate]" remarks crossed the line. The prosecutor's comments did not exhort the jury to take pity upon Kate and did not "play on the passions of the jury or trigger emotional flashpoints." Ibid. We view the prosecutor's comments as nothing more than urging the jury to return a verdict of guilty. We thus reject defendant's claim that this particular portion of the prosecutor's closing constituted prosecutorial misconduct.

Even though we have rejected defendant's contentions about this last portion of the prosecutor's closings, when we view the prosecutor's summation in its entirety, we conclude that her arguments are rife with improper comments. In the aggregate, the prosecutor's closing asked the jury to draw inferences that were not supported by the evidence, denigrated defense counsel and demeaned his role, suggested that defense counsel was defending a man he knew was guilty and accused defendant of planning to commit crimes of which he was never charged.

As we have discussed, defendant objected to only one of the many prosecutorial excesses. "In the absence of objections by defense counsel to the assistant prosecutor's summation, we may not reverse unless [the] excesses 'so grievously affect the substantial rights of the defendant as to convince [the court] that they possessed a clear capacity to bring about an unjust result.'" Sherman, supra, 230 N.J. Super. at 18 (quoting State v. Hipplewith, 33 N.J. 300, 309 (1960)) (first alteration added). We have quoted from the record at length to demonstrate that the prosecutor's arguments in summation so substantially exceed the legitimate bounds of advocacy and were so persistent and serious, that they had the clear capacity to bring about an unjust result.

In Sherman, even though the defendant did not object to any portion of the State's closing, and even though the State's case was "strong," we reversed the defendant's conviction because of prosecutorial misconduct. Id. at 19. We did so because "the vehemence of [the prosecutor's] attack" on defense counsel and defendant "converted the proceedings from a trial of issues by which a fact-finder may weigh the evidence fairly into a vehicle for exacting a personal revenge upon defense counsel." Ibid. Here, although the prosecutor's excesses were not motivated by "personal revenge," ibid., the effect is the same. In Sherman, as in this trial, the prosecutor's summation consisted not of an isolated improper remark, but was instead an accumulation of repeated and highly prejudicial remarks that, taken together, had the clear capacity to deprive defendant of a fair trial.

Our conclusion that the prosecutor's summation "grievously affect[ed] the substantial rights of the defendant" because the remarks had the "clear capacity to bring about an unjust result," id. at 18 (internal quotation omitted), is strengthened by a recognition that the State's case was not particularly strong. The State's case pitted Kate's accusations against defendant's denial. Although the jury may have been skeptical of defendant's claim that he was never alone in the house with Kate, the jury may also have been equally disturbed by Kate's six-year delay in reporting what can only be described as very serious allegations of sexual abuse. And, although corroboration is certainly not required, we note that here there was no confession by defendant or any form of damaging admission.

Thus, despite the prosecutor's claims to the contrary, this trial left the jury with nothing other than Kate's accusations and defendant's denial. As the Court observed in Frost, "[w]hen a jury must choose which of two opposing versions to credit, it simply cannot be said that the evidence is overwhelming. . . . Even if the evidence were overwhelming, that could never be a justifiable basis for depriving a defendant of his or her entitlement to a constitutionally guaranteed right to a fair trial." Supra, 158 N.J. at 87. Here, where the State's case was not particularly strong, the impact of these prosecutorial excesses looms even larger. We thus conclude that the prosecutor's summation so exceeded the legitimate boundaries of fair comment as to deny defendant a fair trial.

III.

In light of this disposition, we need not address defendant's ineffective assistance of counsel arguments that are presented in Point III. Likewise, we need not address defendant's claim of the Brady violation that he discusses in Point II. Were we to reach the Brady issue, we entertain considerable doubts about the judge's conclusion that no violation occurred. In particular, the evidence suggests the prosecutor knew Angie had not marked two of the three trysts on her calendar; Angie's failure to do so dealt a strong blow to the prosecutor's constant refrain that the calendar was all the verification and corroboration that the jury could possibly need because the calendar proved defendant's guilt; and the trysts having occurred after Kate moved out belied the prosecutor's claim that defendant lost interest in Angie once Kate was gone. This evidence was potentially exculpatory. However, we need not squarely decide this issue, as we are satisfied that defendant is entitled to a new trial because of the numerous serious improprieties in the prosecutor's summation.

 
Reversed.

See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) (requiring the prosecution to provide to defendants in pretrial discovery any potential exculpatory information).

We use the pseudonym Kate to protect the child's privacy.

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30

A-1396-08T4

RECORD IMPOUNDED

June 10, 2010