STATE OF NEW JERSEY v. KIWANIE SALTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0502-08T40502-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KIWANIE SALTER,

Defendant-Appellant.

______________________________________

 

Argued November 17, 2009 - Decided

Before Judges Carchman and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-02-00430.

Rubin M. Sinins argued the cause for appellant (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys; Mr. Sinins, of counsel and on the brief).

Sara A. Friedman, Assistant Prosecutor, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Ms. Friedman, of counsel and on the brief).

PER CURIAM

Defendant Kiwanie Salter appeals from his conviction by a jury on charges of aggravated sexual assault, criminal sexual contact, and endangering the welfare of a child. Because the prosecutor presented prejudicial, inadmissible evidence, we reverse and remand for a new trial.

I.

Charges against defendant were filed after his ex-girlfriend's twelve-year-old son, T.B., wrote a note to his mother stating that defendant had sexually abused him. The mother contacted the police, and the boy was examined by a doctor and interviewed by a police detective. The medical examination was normal, finding no signs of sexual assault, but the boy reported details of sexual conduct to the police detective. Upon learning that he had been charged with sexual crimes, defendant turned himself in to the police. He has been in custody since September 2006.

An Essex County grand jury indicted defendant on seven counts: two counts of first-degree aggravated sexual assault by anal penetration and two counts of first-degree aggravated sexual assault by oral penetration, in violation of N.J.S.A. 2C:14-2a(1); two counts of third-degree aggravated criminal sexual contact by putting the victim's hand on defendant's penis, in violation of N.J.S.A. 2C:14-3a; and one count of third-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a. The indictment charged that all the crimes were committed on or about September 2 through 5, 2006, against T.B., whose date of birth is April 11, 1994.

Although the indictment stated in every count that the boy's age was twelve, the fifth and sixth counts did not charge second-degree sexual assault under N.J.S.A. 2C:14-2b, as the facts alleged would have permitted. They charged the lesser-degree offense of aggravated criminal sexual contact under N.J.S.A. 2C:14-3a, when, according to the indictment, "the victim was 13 but less than 16 years old." After the jury was selected for trial, defense counsel moved to dismiss counts five and six on the ground that the child was in fact twelve years old, not between thirteen and sixteen, and therefore the prosecution could not prove those counts. In response, the prosecutor offered, and the court permitted, amendment of the indictment to charges of fourth-degree criminal sexual contact in violation of N.J.S.A. 2C:14-3b.

At trial, T.B. testified that in early September 2006, he was living in Newark with his mother, his college-age sister, and his four younger sisters and female cousins. He identified defendant as his mother's former boyfriend who had lived with them off-and-on in the previous year. He said that his mother and defendant were no longer in a relationship in September 2006. He also testified that he did not like defendant, or any of his mother's boyfriends, because he wanted his father to be with them.

T.B. testified that at about eleven o'clock on Sunday morning, which was September 3, 2006, he was sleeping in the living room. His younger sister woke him up and told him "that Kiwanie was here." T.B. knew that defendant would usually sleep in an enclosed porch off the kitchen that the family referred to as a pantry. He went into the pantry to see if defendant was there. Defendant was lying on a bed wearing a T-shirt and boxers. He woke up and sat up on the bed. Defendant then grabbed T.B.'s arm and pulled him down to his knees. T.B. testified that defendant moved T.B.'s head toward his "private part" and that defendant put his penis into T.B.'s mouth and started to move his head up and down. T.B. did not feel anything come out of defendant's penis. He stood up and walked away after about a minute.

T.B. testified that he did not call to anyone during this incident although his mother and all his sisters and cousins were home. He also testified that neither defendant nor any of his mother's other boyfriends had ever sexually abused him previously, and defendant did not threaten him at the time of this incident.

T.B.'s mother, C.B., testified that she had ended a relationship with defendant earlier that summer, but they were still friendly at the time of Labor Day weekend in September 2006. Defendant called her and then came to her home at about 3:00 a.m. on Sunday, September 3, 2006. He had been drinking, as was his habit. The two spent some time in her bedroom, and their conversation led to oral sex. Defendant then went to the pantry to sleep. C.B. testified further that she woke up at about ten o'clock on Sunday morning and cooked breakfast, which all the children ate. She then went back to sleep at about noon.

T.B. testified that on the afternoon of the same day, Sunday, September 3, he and his younger sisters and cousins were playing hide-and-seek in a vacant apartment downstairs from their home. The girls went upstairs to hide, leaving T.B. alone in the vacant apartment. Defendant came downstairs and started touching T.B.'s "private parts." Defendant then pulled T.B.'s and his own pants down to their thighs and took his penis out. He pulled T.B. to his knees and again caused T.B. to perform fellatio on him. After about a minute, defendant turned T.B. onto his stomach on the stairs and anally penetrated him with his penis for about another minute. T.B. testified that the anal penetration did not hurt. Again, nothing came out of defendant's penis. T.B. did not call out for help and did not tell anyone about the incident when he went back upstairs. Later, he felt some pain for a couple of hours when he was sitting down.

C.B. testified that on Sunday night going into Monday, she and defendant fell asleep together on the couch in the living room. T.B. testified that later that night, when everybody else was asleep, defendant was lying down in the living room when T.B. walked to the kitchen. Defendant got up and indicated with movement of his head for T.B. to come into the pantry with him. T.B. followed defendant into the pantry, where defendant caused T.B. to perform fellatio again and then anally penetrated T.B. on the bed. After about two minutes, T.B. got up and went to his room.

T.B. testified that before these incidents, defendant never physically hurt him or threatened him or his family members. He never saw defendant hit his mother or sisters. When asked why he allowed defendant to do the sexual acts, T.B. answered, "I said I let it happen because I didn't know what he was going to do to me and my family. I saw him with a gun before, but still I didn't know what he was going to do." The prosecutor followed up this answer by asking T.B. whether he was afraid of defendant. T.B. answered no. When asked next whether T.B. was curious about his sexuality, he answered no. He said he did not know why he allowed defendant to touch him.

Near the end of T.B.'s direct testimony, the prosecutor asked him whether defendant ever said anything to him during the sexual acts. T.B. answered, "The second time he said 'don't tell nobody.'" The questioning then proceeded as follows:

Q Now, while this was going on, did he ever say anything else to you?

A No.

Q Did he ever not yell at you, and talk to you did he talk to you softly while this was going on?

A No, he was like whispering. I don't know what he was saying.

Q When he was whispering, where was he whispering?

A The second time.

Q And what was happening when he was whispering?

A He was whispering in my ear.

. . . .

Q When he was whispering in your ear, what was he doing at that moment while he was whispering?

A He was behind me on the stairs.

Q And doing what?

A Moving back and forth.

Q And was that where was his penis at that time?

A In my butt.

Finally, on direct examination, T.B. responded to a number of related questions about how the police investigation and medical examinations made him feel. In answer to each question, T.B. said that they made him "uncomfortable."

From C.B., the prosecutor elicited testimony over defense objection that defendant engaged "mainly [in] anal sex" with her when they had a relationship. C.B. also testified that defendant whispered in her ear during sex. When asked whether she had witnessed defendant in any unusual conduct with children, she testified that defendant would kiss his own daughter on the mouth and that she had told him not to do that. She was not aware of any other unusual activity of defendant with children. When the prosecutor asked C.B. whether she ever saw defendant with a gun, the court sustained defense counsel's objection.

The testimony at trial established that defendant left the home on Tuesday after Labor Day. The next evening, Wednesday, September 6, T.B. left a note for his mother stating that defendant had abused him. At first she did not believe his note but later came to believe her son because he told her about the whispering.

According to C.B., the police never took a statement from her. The prosecution presented no police evidence regarding the layout of the home or anything else of significance to T.B.'s allegations.

No discovery provided to the defense made reference to defendant's whispering, preference for anal sex, kissing his daughter, or carrying a gun. C.B. and T.B. first mentioned whispering to the prosecutor one week before trial. The prosecutor did not give any forewarning to defense counsel or the court that C.B. or T.B. would testify about any of these subjects.

The two doctors who examined T.B., one in the early morning hours of Thursday, September 7, and the second on September 20, 2006, found no physical evidence of sexual abuse. Through several turns at re-direct examination of the first doctor, the prosecution obtained testimony that the doctor was not "shocked" to find no trauma to T.B.'s anus despite his allegations of anal penetration by an adult man.

Defendant elected not to testify and presented no witnesses. In summation, defense counsel attacked T.B.'s credibility based on prior inconsistent statements, variations in the details of his trial testimony, his motive to fabricate the allegations because he did not like defendant, and his admitted exposure to pornography.

The prosecutor focused on T.B.'s credibility, pursuing a theme that his testimony must be true because a twelve-year-old boy would not put his mother through the pain of false allegations or himself through the discomfort and embarrassment of medical examinations or questioning by the police about sexual activity. The prosecutor also argued that, had T.B. been lying, he could have demonized the defendant more by accusing him of additional wrongdoing, such as, testifying that defendant had threatened him with a gun.

The jury deliberated for more than a full day. At one point, the jury reported to the judge that it was "hung." The judge sent the jury back to continue its deliberations. The jury returned a verdict of not guilty on the first three counts of aggravated sexual assault. It found defendant guilty on one count of first-degree aggravated sexual assault by oral penetration, the two amended fourth-degree counts of criminal sexual contact, and the third-degree count of endangering the welfare of a child.

At sentencing, the court denied defendant's motion for a new trial. Defendant was found ineligible to be sentenced for sex offender treatment under N.J.S.A. 2C:47-3 at the Adult Diagnostic and Treatment Center at Avenel. He continued to maintain his innocence and asserted again that T.B. had lied about the sexual abuse.

The court merged the endangering count into the first-degree count and sentenced defendant to fifteen years in state prison on that count with eighty-five percent of the term to be served before parole under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also sentenced defendant to concurrent one-year terms of imprisonment on the two fourth-degree counts. In addition, defendant's sentence included requirements of Megan's Law and monetary penalties.

II.

On appeal, defendant raises the following arguments:

POINT I THE TRIAL COURT ERRED BY ADMITTING

DEFENDANT'S OTHER ACTS

A. EVIDENCE DEFENDANT ENGAGED IN

CONSENSUAL ANAL INTERCOURSE WITH T.B.'S MOTHER

B. EVIDENCE DEFENDANT KISSED HIS DAUGHTER

ON THE MOUTH

C. EVIDENCE THAT DEFENDANT WHISPERED

DURING SEX

D. EVIDENCE THAT DEFENDANT PREVIOUSLY

CARRIED A HANDGUN

POINT II THE TRIAL COURT ERRED BY ADMITTING EXPERT

TESTIMONY FROM A FACT WITNESS

POINT III THE STATE ENGAGED IN PROSECUTORIAL

MISCONDUCT

A. THE STATE'S FAILURE TO DISCLOSE T.B.'S

AND C.B.'S STATEMENTS

B. THE STATE'S IMPROPER QUESTIONING OF A

FACT WITNESS AS AN EXPERT

C. THE STATE'S IMPERMISSIBLE VOUCHING

DURING SUMMATION

We find sufficient merit in defendant's Point I to set aside the jury's verdict and grant a new trial.

Defendant contends the trial court erred by admitting evidence of "other acts" evidence that (1) defendant engaged in consensual anal intercourse with C.B., (2) defendant whispered during consensual sex with C.B., (3) defendant kissed his daughter on the mouth, and (4) defendant previously was in possession of a gun. Defendant also contends that the State produced none of this evidence in discovery, nor did the State provide any advance warning that this evidence would be presented at trial. We agree that prejudicial evidence regarding defendant's preference for anal sex, kissing his daughter on the mouth, and possession of a gun was presented to the jury without meeting the requirements of N.J.R.E. 401, 403, and 404(b).

Our standard of review requires that we grant substantial deference to the trial court's evidentiary rulings. State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); State v. McDougald, 120 N.J. 523, 577-78 (1990). Generally, we reverse a trial court's evidentiary rulings only where there is an abuse of discretion. State v. Nelson, 173 N.J. 417, 470 (2002); State v. Feaster, 156 N.J. 1, 82 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). If in response to objection the trial court did not analyze evidence under the applicable rules of admissibility, our standard of review is plenary. State v. Lykes, 192 N.J. 519, 534 (2007). Where defendant failed to object at trial and raises an evidentiary issue for the first time on appeal, we apply the plain error standard of review. See R. 2:10-2; State v. Hunt, 115 N.J. 330, 363 (1989); State v. Macon, 57 N.J. 325, 337 (1971).

The record contains no objection at trial to C.B.'s testimony about defendant's whispering during sexual activity, her testimony that defendant kissed his daughter on the mouth, and T.B.'s testimony that he had seen defendant with a gun. Defense counsel did make a relevance objection when the prosecutor sought to question C.B. about defendant's preference for anal intercourse.

After defense counsel's objection, the court called for a sidebar conference, which both counsel quickly diverted to discovery and hearsay issues. The prosecutor asserted that the defense had discovery of the proposed testimony through a psychologist's report referencing a statement by C.B. that defendant engaged in "unconventional sex." The prosecutor then commented about the relevance of C.B.'s anticipated testimony, stating: "It's very relevant to this case because it shows where his mindset was of the break-up, he was looking for anal sex more than vaginal, it's very relevant. It shows a state of mind at the time." Defense counsel responded that the reference to "unconventional sex" did not say "he was looking for that." The prosecutor then repeated her argument that "[i]t's quite relevant to show his state of mind[,] what type of sex he couldn't get off of her, so he wanted this little boy to get it." The trial court did not rule on the relevance objection but said that the court would "[s]ee where we're going with the questioning." Defense counsel made no additional relevancy objection when C.B. testified that defendant engaged mainly in anal sex with her.

In summation, the prosecutor made reference to this testimony and her theory of relevance when she said, "A 12-year-old, now 14-year-old is saying it was my fault that a 39-year-old man who, yes, didn't get the anal sex he was frequently getting couldn't get off of her, she gave him oral sex. So, what does he find? A young boy curious, confused, scared, dad is not there." Defense counsel made no objection to these comments in the prosecutor's summation.

C.B.'s testimony and the prosecutor's argument were inadmissible and prejudicial on several grounds. The trial court erred in failing to analyze the proposed testimony under N.J.R.E. 401 through 404 and to rule at sidebar on defense counsel's relevancy objection. That error was compounded at trial when the prosecution elicited other inadmissible evidence that was not the subject of defense objection but should have alerted both counsel and the trial court to a need for analysis under the same rules of evidence.

First, C.B.'s testimony about defendant's preference for anal intercourse with her was not relevant and should have been excluded. N.J.R.E. 402 provides that all relevant evidence is admissible unless excluded by law or another rule of evidence. By implication, irrelevant evidence is not admissible. State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990). "'Relevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. "Analyzing relevance requires examining 'the logical connection between the proffered evidence and a fact in issue.'" State v. Jenewicz, 193 N.J. 440, 457-58 (2008) (quoting State v. Williams, 190 N.J. 114, 123 (2007)). "Courts consider evidence to be probative when it has a tendency 'to establish the proposition that it is offered to prove.'" State v. Burr, 195 N.J. 119, 127 (2008) (quoting State v. Allison, 208 N.J. Super. 9, 17 (App. Div.), certif. denied, 102 N.J. 370 (1985)); accord State v. Wilson, 135 N.J. 4, 13 (1994). Furthermore, that proposition must be material to a fact in issue. See Williams, supra, 190 N.J. at 123; State v. Castagna, 400 N.J. Super. 164, 174 (App. Div. 2008).

Defendant's state of mind was not a disputed issue at trial. The defense never suggested that defendant was not guilty because he did not have the requisite criminal intent to engage in anal intercourse with T.B. The defense argued that the incidents never happened, that T.B.'s testimony was a complete fabrication.

We also reject the prosecutor's suggestion that C.B.'s testimony was relevant to prove defendant's motive for the sexual assaults of T.B. We see no "tendency in reason," N.J.R.E. 401, or "logical connection," Jenewicz, supra, 193 N.J. at 457, between a man's sexual preferences with his adult girlfriend and motivation to engage in sexual activity with a child when the adult relationship has ended.

Even if one could say the evidence had some relevance, the risk of prejudice so substantially outweighed its probative value that C.B.'s testimony should have been excluded under N.J.R.E. 403. See State v. Collier, 316 N.J. Super. 181, 192 (App. Div. 1998), aff'd o.b. 162 N.J. 27 (1999). Whether any jurors would be troubled by defendant's preference for anal sex with his girlfriend, and whether they would use that information as evidence that defendant had deviant sexual proclivities or was otherwise a man of bad character, were risks that the trial court should have considered and eliminated from the trial. See State v. Vallejo, 198 N.J. 122, 133 (2009).

Beyond inadmissibility under N.J.R.E. 401 and 403, evidence of defendant's sexual preference with an adult partner was inadmissible under N.J.R.E. 404(b). While anal sex with a consenting adult is not a crime, N.J.R.E. 404(b) also provides that other uncharged "acts" are not admissible to prove defendant's bad character or disposition to commit the crimes charged. See State v. Koskovich, 168 N.J. 448, 481-87 (2001). To determine admissibility under N.J.R.E. 404(b), the court must analyze the evidence in accordance with the test established in State v. Cofield, 127 N.J. 328, 338 (1992), and later elaborated upon in State v. Marrero, 148 N.J. 469 (1997), State v. Hernandez, 170 N.J. 106 (2001), and other decisions.

The prosecutor's proffer on relevance by its own terms established that the testimony was inadmissible under N.J.R.E. 404(b). In effect, the prosecutor said that she sought to offer C.B.'s testimony to prove defendant's disposition to act with T.B. in conformity with his preference for anal sex with C.B. Evidence rule 404(b) expressly prohibits admission of "evidence of other . . . acts . . . to prove the disposition of a person in order to show that such person acted in conformity therewith." N.J.R.E. 404(b); see State v. Nance, 148 N.J. 376, 386 (1997); State v. Stevens, 115 N.J. 289, 299-300 (1989).

Also significant in gauging prejudice to defendant under N.J.R.E. 403 and 404(b) is the trial court's failure to give any limiting instruction with respect to C.B.'s testimony about anal sex. See Nance, supra, 148 N.J. at 386-87.

The State argues on appeal that testimony of defendant's preference for anal intercourse was admissible under N.J.R.E. 406 as evidence of a relevant habit. But the prosecution did not lay a foundation for admission of the testimony to prove defendant's sexual habit. Under N.J.R.E. 406, the proponent must show that the habitual act occurred "with sufficient regularity in a specific situation to justify its admission as evidence of a habit." State v. Radziwill, 235 N.J. Super. 557, 565-66 (App. Div. 1989), aff'd o.b. 121 N.J. 527 (1990); accord State v. Bogus, 223 N.J. Super. 409, 427-29 (App. Div.), certif. denied, 111 N.J. 567 (1988). Here, C.B.'s testimony that defendant engaged "mainly [in] anal sex" with her provided vague information about regularity and none about frequency.

More important, engaging "mainly [in] anal sex" with a consenting adult woman is not the same specific situation as anal penetration of a twelve-year-old boy. Had the prosecution shown sufficient regularity and frequency of defendant's sexual habit with C.B., the evidence would still be inadmissible to prove that he engaged in the same kind of conduct with T.B.

Similarly, the prosecution provided inadequate evidence of defendant's habit of whispering during sex with C.B. to prove that he acted in conformity with that habit when he allegedly engaged in a sexual act with T.B. We are less troubled with admission of testimony about whispering, however, because the potential for prejudice is much less and the probative value may have been greater in the circumstances of this case. If on retrial, the prosecution again proffers testimony about whispering, the trial court may need to conduct a hearing under N.J.R.E. 104(a) to determine admissibility either as evidence of habit under N.J.R.E. 406 or evidence of an act admissible for a proper purpose under N.J.R.E. 404(b).

With respect to testimony by C.B. that defendant kissed his daughter on the lips, we agree with defendant that the evidence was inadmissible under N.J.R.E. 404(b) and 403. From the record, we surmise that not even the prosecutor anticipated C.B.'s testimony that defendant kissed his daughter on the lips. The prosecutor was apparently seeking a different response to her question about whether there was "anything unusual about [defendant's] behavior with children female or male." The question was overly broad and should have alerted defense counsel and the trial judge to a potentially inadmissible response.

Evidence of defendant's kissing his own daughter had no probative value and substantial risk of prejudicing defendant in the jury's eyes. Although defense counsel did not object, a curative instruction that the jury should disregard it should have been given. See State v. Wakefield, 190 N.J. 397, 485-86 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). On retrial, that testimony should be excluded.

With respect to T.B.'s testimony about having seen defendant in the past with a gun, once again the evidence required the analysis for admission of other crimes or wrongs evidence under N.J.R.E. 404(b) in accordance with the test first established in Cofield, supra, 127 N.J. at 338. Because the prosecution had not alerted defense counsel and the court that T.B. would testify about a gun, defense counsel may have been surprised by T.B.'s reference to a gun and not objected at that time for strategic reasons. When the prosecutor asked about a gun again during C.B.'s later testimony, defense counsel objected, and the trial court correctly sustained the objection.

Again, the court should have given a curative instruction, with or without a request from the defense, when T.B. testified about the gun, or at least when the court sustained defense counsel's objection during C.B.'s testimony. See Vallejo, supra, 198 N.J. at 134-35; State v. Winter, 96 N.J. 640, 644, 648-49 (1984); State v. La Porte, 62 N.J. 312, 317-19 (1973). The absence of an instruction further prejudiced defendant's opportunity to receive a fair trial.

Especially because T.B. testified that he was not afraid of defendant and defendant never threatened him or his family, testimony about defendant's past possession of a gun would have to be carefully scrutinized before it is presented to the jury. On retrial, the prosecution should alert defense counsel and the court before seeking testimony about past firearms possession, or any other evidence obviously subject to N.J.R.E. 404(b).

Defendant is entitled to a new trial because prejudicial, inadmissible evidence tainted the jury's fair evaluation of admissible evidence pertaining to the alleged sexual abuse.

III.

Having determined that defendant is entitled to a new trial, defendant's arguments about discovery violations are now moot and can be addressed by the trial court before a retrial. We comment briefly on two other issues because they have been briefed and the matters may arise again on retrial.

Regarding the first doctor's testimony that he was not "shocked" because T.B. did not have physical signs of trauma, the doctor's reaction or state of mind was not relevant evidence. Despite several attempts and objections on re-direct examination, the relevant question was not artfully put to the doctor. Because no expert discovery was provided, the prosecution was precluded from asking the doctor his opinion about whether T.B. had been sexually assaulted.

But expert witnesses are not only those who render opinions about an issue in dispute. Under N.J.R.E. 702, any "scientific, technical, or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue" is deemed to require the testimony of a witness who is "qualified as an expert by knowledge, skill, experience, training, or education." Therefore, seeking testimony from the doctor about his knowledge of instances of anal penetration without causing trauma required expert qualification under the rule and compliance with the discovery obligations of Rule 3:13-3(c)(9). See Lamere v. N.Y. Office for the Aging, 223 F.R.D. 85, 87-90 (N.D.N.Y. 2004).

Nevertheless, it was defense counsel that initiated questioning of the doctor about the absence of trauma to T.B. On direct examination, the prosecution questioned the doctor only to establish that T.B. had been examined and the nature of the examination. The doctor's testimony about his observations required no discovery as an expert witness. Cf. State v. LaBrutto, 114 N.J. 187, 198-99 (1989) (police officer can testify as a non-expert based on his own observations).

When the prosecution questioned the doctor on re-direct about his knowledge of and experience with cases of sexual abuse and trauma, the questions were in response to the defense line of questioning. The prosecution was attempting to develop another side of the issue, namely, whether anal penetration by an adult would necessarily cause trauma. We conclude that any testimony of the doctor that extended into areas of his expertise was invited by the defense and cannot be deemed prejudicial in the circumstances of this case. See State v. Jenkins, 178 N.J. 347, 358-59 (2004); State v. Corsaro, 107 N.J. 339, 345-46 (1987).

Finally, the prosecutor's summation dwelled at length on the dubious theme that T.B. would not hurt his mother and put himself through the embarrassment and distress of police investigation and medical examinations unless his allegations were true. Defendant contends that the prosecutor was improperly vouching for T.B.

While we do not interpret this line of argument necessarily as vouching, we caution the prosecution not to argue beyond the evidence presented to the jury. Cf. State v. Bradshaw, 195 N.J. 493, 510 (2008) (error in State's theorizing in summation without evidence that disabled victim had heightened sensory perception); State v. Frost, 158 N.J. 76, 85 (1999) ("egregious" prosecutorial misconduct in suggesting in summation without supporting evidence "that the police officers would not lie because of the 'magnitude' of charges that could be brought against them"); State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993) (prosecutorial misconduct in suggesting to jury that policeman would not lie in his testimony because his career would be jeopardized). Evidential support for the prosecutor's summation theme consisted entirely of a few one word answers that T.B. felt "uncomfortable" when telling his version of the events to the police and when he was examined by doctors. A prosecutor's arguments must be based on the factual record. A prosecutor may not embellish the evidence to enhance the prospect of conviction. Bradshaw, supra, 195 N.J. at 510. Additionally, a prosecutor must not suggest in argument that the she personally believes the truth of a witness's testimony. See State v. Walden, 370 N.J. Super. 549, 561 (App. Div.), certif. denied, 182 N.J. 148 (2004).

Reversed and remanded for a new trial.

 

Defendant has not complied with Rule 2:6-2(a)(1) by indicating in the table of contents of his brief which of the listed argument points were not raised in the trial court.

(continued)

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25

A-0502-08T4

RECORD IMPOUNDED

December 24, 2009