STATE OF NEW JERSEY v. OMAR BRIDGES
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0806-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
vs.
OMAR BRIDGES,
Defendant-Appellant.
__________________________________
Submitted: April 28, 2010 - Decided: September 8, 2010
Before Judges Cuff, Payne and Waugh.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment Nos. 05-11-2686 and 05-11-2687.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Sylvia Orenstein,
Assistant Deputy Public Defender, of counsel
and on the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Stephen
Pogany, Assistant Prosecutor, of counsel and
on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Omar Bridges was charged and tried by a jury
under two indictments. Under Indictment No. 05-11-2686,
defendant was found guilty of first degree attempted murder,
N.J.S.A. 2C:11-3, N.J.S.A. 2C:5-2 (Count One); two counts of
second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Counts
Two and Four); third degree unlawful possession of a weapon (a
handgun), N.J.S.A. 2C:39-5b (Count Five); second degree unlawful
possession of a firearm, N.J.S.A. 2C:39-4a (Count Six); second
degree unlawful possession of an assault firearm, N.J.S.A.
2C:39-5f (Count Seven); third degree receiving stolen property,
N.J.S.A. 2C:20-7 (Count Nine); and second degree eluding,
N.J.S.A. 2C:29-2b (Count Ten). Under Indictment No. 05-11-2687,
a jury found defendant guilty of second degree certain person
not to have weapons, N.J.S.A. 2C:39-7b.
On Indictment No. 05-11-2686, the judge merged Count Two
with Count One and Count Six with Counts One and Four. On Count
One, defendant was sentenced to a twenty-year term of
imprisonment with an 85% No Early Release Act (NERA)1 period of
parole ineligibility. On Count Four defendant was sentenced to
a term of ten years imprisonment subject to NERA, consecutive to
Count One. On Count Five, defendant was sentenced to a five-
year term of imprisonment, consecutive to Count One. On Count
Seven, defendant was sentenced to a five-year term of
1 N.J.S.A. 2C:43-7.2.
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imprisonment with a two-year six-month period of parole
ineligibility, consecutive to Count One. On Counts Nine and
Ten, defendant was sentenced to five-year terms of imprisonment,
concurrent to Count One. On the certain person not to have a
weapon charge in Indictment No. 05-11-2687, defendant was
sentenced to a ten-year term of imprisonment with a five-year
period of parole ineligibility, consecutive to Count One of
Indictment No. 05-11-2686. His aggregate term is fifty years in
prison with a thirty-three-year period of parole ineligibility.
I
Defendant was the passenger in a stolen Jaguar when a gun
battle erupted between pursuing police officers and the
occupants of the Jaguar. One of the officers was shot in the
shoulder and face. The evidence against defendant consisted of
defendant's cell phone found several blocks from the shootout
near a gun and gloves, and eyewitness testimony by one of the
pursuing police officers and a co-defendant, Alphonse Ollie.
The State's witnesses contend defendant was sitting in the back
seat of the Jaguar and was the only person to fire at the
officers. Defendant asserts he was in the front seat and Ollie
was the shooter.
We reverse and remand for a new trial due to the absence of
a jury charge to guide the jury's evaluation of the wounded
A-0806-07T4
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police officer's identification of defendant and the persistent
denigration of defense counsel by the prosecutor, repeated
efforts to have defendant characterize the State's witnesses as
liars, the prosecutor's disparagement of defendant as a liar,
and several instances of wholly improper comments during the
prosecutor's summation.
At about 3:45 a.m. on October 9, 2004, Police Officers
Eduardo Patinho and Kimberly Gsavatich were on routine patrol in
Newark. As they approached the intersection of Orange Street
and Boyden Street, they observed an exchange of gunfire between
the occupants of a silver Jaguar and a black Subaru.2 Both
officers witnessed shots being fired at the Subaru from the
passenger seat behind the driver of the Jaguar.
Officer Patinho, the driver of the squad car, testified he
pulled within half a car length from the Jaguar. Officer
Gsavatich, who testified that she and Officer Patinho approached
within one car length of the Jaguar, observed four people in the
Jaguar. Although she recorded four passengers in the Jaguar in
her report prepared shortly after the incident, she equivocated
on the number on redirect examination.
2
Police later determined both cars had been stolen from a
Sheraton Hotel parking lot in Iselin.
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As the officers approached, both vehicles sped away. The
Subaru drove southbound on Boyden Street, and the Jaguar drove
westbound on Orange Street. The officers activated their sirens
and spotlight and pursued the Jaguar, at times reaching speeds
between ninety and 100 miles per hour. During the pursuit, the
Jaguar hit the rear of a tractor trailer but continued. Both
the Jaguar and the squad car went airborne after passing over a
railroad crossing and hitting an embankment. This caused the
Jaguar to "bottom[] out its transmission." The Jaguar continued
very slowly until it finally stopped approximately ten yards
from the intersection of 6th Street and 7th Avenue.
Officer Patinho stopped the squad car behind the Jaguar,
and both officers exited the car with their weapons drawn.
Patinho walked towards the driver's side of the Jaguar; Officer
Gsavatich walked towards the passenger side. Patinho ordered
all of the occupants in the vehicle to show him their hands.
The passenger in the rear driver side seat "peeked" his head out
of the window, fired a gun through the open back window and
struck Officer Patinho in the shoulder. Patinho was
approximately ten feet from the car. Patinho testified he did
not clearly see the gun or the shooter because the shooter was
crouching down in the back seat as he fired. Nevertheless, he
was able to identify defendant as the rear driver side
A-0806-07T4
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passenger. He testified he saw defendant when he "peeked out"
the window immediately prior to firing.
Both officers immediately opened fire concentrating on the
rear driver's side of the car. Patinho, shot in the mouth and
bleeding profusely, continued to fire his gun until his
ammunition was spent. He then returned to the police car, sat
on the ground, and awaited medical assistance.
Both officers saw the driver and the front passenger of the
Jaguar exit the car and run. Gsavatich never saw the purported
shooter get out of the car or where he went. She never saw his
face, and did not identify him at trial.
Arthur Hilton, a security officer at the Garden Spires
Housing complex in Newark, was notified at approximately 3:50
a.m. that a man, later identified as defendant, hopped over the
complex's steel fence. Hilton observed defendant on the
security monitor enter and exit two buildings before he
proceeded to the security office. Defendant asked Hilton if he
could call for a cab, and Hilton lent him his cell phone. A cab
pulled up a few minutes later; defendant left the complex in the
taxi at 4:18 a.m.
Detective Thomas Kelly of the Essex County Prosecutor's
Office arrived on the scene at approximately 6 a.m. He observed
seven or eight bullet holes in the Jaguar dispersed throughout
A-0806-07T4
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the rear driver's side door, quarter panel and windshield. He
reported that officers recovered a total of twenty-two shell
casings in the vicinity of the Jaguar and police vehicle.
Thirteen came from Patinho's gun, two from Gsavatich's gun.
Only one nine millimeter shell casing was discovered inside the
Jaguar, seven non-police casings were found on the street.
Additionally, Detective Kelly testified that he and other
officers found five nine millimeter shell casings at the scene
of the initial shootout between the Jaguar and the Subaru near
the intersection of Orange and Boyden and two more at the
intersection of North 5th Street and 7th Avenue. Officers also
found a silver Nextel cell phone lodged between the driver's
side seat and the door abutment of the Jaguar. Detective Kelly
later determined that the phone belonged to co-defendant Ollie.
Officers also found blood in the back of the Jaguar. The
blood did not match defendant's DNA. Blood samples were not
taken from the co-defendants.
Police recovered the Subaru later on the morning of the
shootout. No one was found inside the vehicle. It bore two
bullet holes, one through the windshield and one through the
passenger side door.
Defendant was injured during the exchange of shots.
Shortly before 7:00 a.m., co-defendant Ollie asked his
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girlfriend, Kimberly Moore, to assist defendant. Moore, a
nursing assistant, informed Ollie she could not remove a bullet,
but gave him a first aid kit.
At this time, Ollie told Moore that he lost his phone when
he was running from the police and defendant was with him at the
time. In her statement to police, Moore reported that Ollie
told her defendant was shot in the leg and another person was
shot in the "butt." She did not know the identity of the other
wounded person.
By 8:30 or 9 a.m., defendant was on his way to a hospital
in Easton, Pennsylvania by car. The trip was organized by
Johntaya Turner, a friend of defendant. When they arrived at
Easton Hospital, defendant sought only emergency care. He
identified himself to an emergency room nurse as Shariff Johnson
and said he was shot in a nearby club. Defendant eventually
consented to emergency surgery.
The next day, Detective Barry Golazeski of the North
Hampton County District Attorney's Office interviewed defendant
at the hospital. Detective Golazeski testified defendant
identified himself as Shariff Johnson and stated he lived in
Nagituck, Connecticut. Defendant told the detective he was shot
when an argument erupted in a bar in Easton, but he did not
immediately realize he was injured. Golazeski took defendant's
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photograph and fingerprints and later discovered his true name
and address.
Further investigation revealed a person, Nelson Nieves, who
observed four people running from the Jaguar, two running up 7th
Avenue and two running down it. Johntaya Turner, the woman who
drove defendant to the hospital, also identified a photograph of
DeShawn Davis, also known as "Nitti," who defendant maintained
was also in the back of the Jaguar. He has never been located.
Alfred Santiago, who lives approximately two-and-a-half
blocks from the shootout between the occupants of the Jaguar and
police, found a gun in a pile of trash approximately four or
five feet behind his house. Police recovered a loaded Tech Nine
gun, two gray Nike batting gloves, and a Motorola cell phone
approximately fifteen to twenty feet from the gun. Police were
unable to recover any fingerprints from any of these items. The
gloves were tested for DNA, but the results only proved that the
wearer was male. The cell phone belonged to defendant.
Co-defendant Ollie was arrested on October 12, 2006. At
trial, Ollie admitted he had entered a plea agreement and had
not been sentenced.3 He explained that his nickname was "Speedy"
3
Ollie pled guilty pursuant to a plea agreement to eluding and
theft for this episode, and to aggravated assault for shooting
his wife, under a separate indictment. Under the plea
agreement, he received a ten-year period of imprisonment with an
(continued)
A-0806-07T4
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due to his ability to steal cars quickly. He admitted he stole
the Jaguar from the Sheraton Hotel. He testified he was with
defendant and Kareef Ford, known to him as "Shoeshine," when he
stole the car. Ollie returned to Newark around midnight and
went to a Bloods street gang meeting at Minks, a local bar.
When he left the meeting at approximately 2 a.m., members of a
rival gang, the Crips, pulled up in a black Subaru and asked
him, "what was cracking." Ollie testified the statement is
disrespectful to Bloods, so he found defendant and co-defendant
Rasheem Woods and they searched for the Subaru.
Ollie identified himself as the driver of the Jaguar.
Woods sat in the front seat; defendant sat behind Woods armed
with a Tech Nine. He further stated that, when they found the
Subaru, defendant shot at it and an unidentified blue car. As
he drove down Orange Street towards 1st Street, Ollie noticed
the sirens and lights of a police car behind the Jaguar. He
sped away.
Ollie recounted the high-speed attempt to elude the police
and how the Jaguar stopped after its oil pan was damaged.
According to Ollie, he fled immediately on foot. During his
(continued)
eight and one-half year period of parole ineligibility. He had
not been sentenced at the time of trial.
A-0806-07T4
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flight, he heard shots behind him. Ollie also testified that
Woods climbed out of the front passenger-side window, and
defendant also got out of the car. He insisted neither he nor
Woods had a weapon, and defendant was the only one who fired at
the police. Ollie said that the next time he saw defendant was
at defendant's mother's house, and defendant was bleeding from a
gun shot wound.
Defendant testified on his own behalf and admitted that he
drove Ollie and Shoeshine to the Sheraton Hotel where they stole
the Jaguar. He asserted that Ollie and Shoeshine drove off in
the Jaguar and he did not see Ollie again until approximately
11:30 p.m. in Newark when Ollie and his friends were playing
"chase" with the occupants of the Subaru. Defendant said he
also saw Ollie and Woods later that night at Minks, and he left
with them at approximately 2:50 a.m. Woods, or "Rocky" as
defendant referred to him throughout his testimony, was going to
drive him to his girlfriend's house. He also said he lent Ollie
his cell phone.
Defendant testified that Woods drove and he was in the
front passenger seat. He explained he is six feet six inches
tall and never sits in the back seat of any car because he
cannot fit. Defendant maintained that Ollie was in the back
behind Woods and Nitti was in the seat behind him. Defendant
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said he was drunk, fell asleep, and awoke to the sound of gun
shots as they approached his girlfriend's house near the Orange
Street and Boyden Avenue intersection. The next thing defendant
knew, they were being chased by police.
Defendant insisted when the car came to a stop on 6th
Street, Ollie was the shooter. He said he climbed out of the
car window and felt a burning sensation in his stomach, but
continued to run around the car and down 7th Avenue. He claimed
that Nitti was also injured. Defendant testified he went to the
Spires Housing complex to get a ride home from a friend. When
he learned his friend was not at home, he borrowed a cell phone,
called a cab, and went home.
Defendant explained that he did not feel any pain until
the next day, and did not realize he was bleeding until he
showered and saw blood. He then called Turner to pick him up.
Turner, Ollie, Woods, and Nicole, a friend of Turner, arrived
shortly thereafter. Ollie went to his girlfriend's house to get
a medical bag and, when he came back, reported that his
girlfriend refused to help. Defendant testified he went to
Latesha Green's home because her mother was a nurse, but her
mother just looked at the wound. Turner then arranged a meeting
at a gas station and they left from there to go to a hospital.
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II
On appeal, defendant raises the following arguments:
POINT ONE
BECAUSE THE IDENTITY OF THE SHOOTER WAS THE
CENTRAL ISSUE IN THIS CASE, AND BECAUSE THE
ONLY IDENTIFICATIONS OF THE DEFENDANT WERE
EXTREMELY UNRELIABLE, THE TRIAL COURT'S
FAILURE TO GIVE THE JURY AN IDENTIFICATION
CHARGE AND INSTRUCT THEM THAT THE STATE HAD
TO PROVE IDENTIFICATION BEYOND A REASONABLE
DOUBT DENIED DEFENDANT HIS CONSTITUTIONAL
RIGHT TO A FAIR TRIAL AND WAS CLEARLY
CAPABLE OF PRODUCING AN UNJUST RESULT IN
THIS CASE. U.S. CONST., AMENDS. VI, XIV;
N.J. CONST., (1947), ART I., 1, 9, 10 (Not
Raised Below).
POINT TWO
THE ACCOMPLICE LIABILITY CHARGE, WHICH WAS
GIVEN OVER THE OBJECTION OF DEFENSE COUNSEL,
WAS INAPPLICABLE HERE AND SERVED ONLY TO
CONFUSE THE JURY, DENYING THE DEFENDANT HIS
RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
U.S. Const., Amend. XIV; N.J. Const., Art.
1, ¶ 10.
POINT THREE
THE PROSECUTOR'S OUTRAGEOUS AND PERVASIVE
MISCONDUCT DENIED THE DEFENDANT HIS RIGHTS
TO DUE PROCESS AND A FAIR TRIAL. U.S.
CONST., AMENDS. V, VI, XIV; N.J. CONST. ART.
I, ¶¶ 1, 10. (Partially Raised Below).
A. The Prosecutor Repeatedly Denigrated the
Defense and The Defense Attorney.
B. The Prosecutor Persisted in Calling the
Defendant A Liar and Tried to Goad the
Defendant into Labeling State's
Witnesses as Liars.
A-0806-07T4
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C. The Prosecutor Impermissibly Vouched For
His Witnesses.
D. The Prosecutor Misstated Law and Facts.
E. The Prosecutor Improperly Appealed to
the Jury to Do Its Duty.
POINT FOUR
BECAUSE, AS THE TRIAL COURT ACKNOWLEDGED,
DEFENDANT WAS NOT THE DRIVER OF THE CAR AND
THE STATE PRESENTED NO EVIDENCE THAT HE
SOLICITED OR AIDED THE DRIVER TO ELUDE THE
POLICE, THE CHARGE OF ELUDING SHOULD HAVE
BEEN DISMISSED AND MUST BE REVERSED. (Not
Raised Below).
defendant raises the
In a pro se supplemental brief,
following arguments:
POINT I
UNITED STATES SUPREME COURT DECISION IN
HOLMES V. SOUTH CAROLINA AND THE NEW JERSEY
DECISIONS, STATE V. COOK AND DEMARCO REQUIRE
THIS COURT TO REVERSE AND REMAND FOR NEW
TRIAL.
POINT II
DEFENDANT WAS DENIED THE RIGHT TO CONFRONT
THE DNA ANALYST IN VIOLATION OF THE SIXTH
AND FOURTEENTH AMENDMENTS OF THE U.S.
CONSTITUTION AND AGAINST THE N.J. CONST.
ART.
1 PARAGRAPH 10.
POINT III
WHERE THE STATE HAS DELIBERATELY WITHHELD
EVIDENCE OF A POTENTIAL CLAIM AND EVEN
DENIED THE EXISTENCE OF EVIDENCE OF THE
CLAIM, THE INTEREST OF JUSTICE REQUIRE THAT
THE STATE BE BARRED FROM OBJECTING TO THE
A-0806-07T4
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ASSERTION OF THE CLAIM ONCE RELEVANT
EVIDENCE COME TO LIGHT.
III
Defendant argues the jury charge is flawed in two respects.
First, he contends the trial judge should have provided a sua
sponte instruction on the issue of identification. Second, he
argues that the judge erred in providing an accomplice liability
charge. Under the circumstances of this case, we hold that the
judge properly delivered an accomplice liability charge but
should have provided an instruction to guide the jury's
evaluation of Officer Patinho's identification of defendant as
the shooter.
It is well settled that appropriate and proper jury charges
are essential in a criminal case to assure a fair trial. State
v. Reddish,
181 N.J. 553, 613 (2004); State v. Green,
86 N.J.
281, 287 (1981). When a defendant identifies an error in the
charge, we must evaluate the charge in its entirety. State v.
Figueroa,
190 N.J. 219, 246 (2007); State v. Wilbely,
63 N.J.
420 (1973).
Although a flawed jury charge is a poor candidate for
rehabilitation or the application of the harmless error rule,
State v. Simon,
79 N.J. 191, 206 (1979), a defendant must still
demonstrate that the error affected the outcome of the jury's
deliberations, State v. Jordan,
147 N.J. 409, 422 (1997). When
A-0806-07T4
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a defendant fails to object to the alleged error at trial, we
must apply the plain error standard of review. Thus, we must
determine whether any error contributed to an unjust and
unwarranted result. State v. Macon,
57 N.J. 325, 333 (1971); R.
2:10-2.
A. The Accomplice Liability Charge
Defendant argues there was no basis to provide an
accomplice liability charge. In support of this argument, he
concentrates solely on his testimony in which he recounted he
was a passenger in the front seat of the Jaguar and had fallen
asleep. He awoke as the encounter with the black Subaru erupted
into gunfire. Having been unaware of the search for the Subaru
and the purpose of that search, he reasons he was simply present
at the scene and an innocent bystander as gunfire erupted, and
the driver fled from the scene and embarked on a high speed
chase. We disagree.
When a charge is requested by a party, the trial judge is
required to review the record and provide the requested charge
if there is sufficient evidence in the record to allow the jury
to reasonably find the existence of each element of the offense
as a principal or an accomplice. State v. Wilder,
193 N.J. 398,
146 N.J. 208, 223 (1996).
406-07 (2008); State v. Roach,
Accomplice liability need not be charged in the indictment.
A-0806-07T4
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State v. Hakim,
205 N.J. Super. 385, 388 (App. Div. 1988).
"Where the evidence indicates a rational basis for accomplice
liability, the judge can charge the jury on that basis even
though the indictment does not expressly allege" such a theory
of liability, and the trial judge may do so "even without the
request of either party." Ibid. Accord State v. Mancine,
124 N.J. 232, 256-57 (1991). See also, State v. Savage,
172 N.J.
374, 396-98 (2002) (explaining the different tests for requested
and unrequested jury charges in the context of charging lesser-
included offenses). When an instruction is given that
"'correctly states the law, but is inapplicable to the facts or
issues before the court . . . prejudice must be shown in order
to constitute it reversible error.'" State v. Moore,
330 N.J.
Super. 535, 542 (App. Div.) (quoting State v. Thomas,
76 N.J.
344, 365 (1978)), certif. denied,
165 N.J. 531 (2000).
If the trial record supports a conviction as a principal,
an accomplice, or a co-conspirator, the judge should charge the
Roach, supra,
146 N.J. at 223. Here, the
jury on each theory.
trial record clearly supported an accomplice liability
instruction. Defendant would have us discount all other
evidence in the case and accept his version of events as true.
That is not the applicable standard. The trial judge must focus
A-0806-07T4
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on the entire record not simply the testimony offered by one
witness. In short, this argument is without merit.
B. Identification
Defendant also argues that the trial judge should have
provided an identification charge to guide the jury's evaluation
of the testimony of Officer Patinho and co-defendant Ollie. The
State responds that the extensive credibility instruction
provided by the trial judge adequately addressed his concerns.
Given Officer Patinho's limited opportunity to view the shooter,
an identification charge was critical to allow the jury to
properly evaluate the in-court identification by the victim of
his assailant.
We evaluate this claim of error in accordance with the
plain error standard. Macon, supra,
57 N.J. at 337-38; R. 2:10-
2. We will not consider error harmful unless it contributed to
Macon, supra,
57 N.J. at 337-38.
an unfair result.
"It is well established . . . that when identification is a
critical issue in the case, the trial court is obligated to give
the jury a discrete and specific instruction that provides
appropriate guidelines to focus the jury's attention on how to
analyze and consider the trustworthiness of eyewitness
identification." State v. Cromedy,
158 N.J. 112, 128 (1999).
Accord State v. Walker,
322 N.J. Super. 535, 546 (App. Div.),
A-0806-07T4
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certif. denied,
162 N.J. 487 (1999). Whether an omission of an
identification charge rises to plain error requires an analysis
State v. Benthall,
182 N.J. 373, 386
of the facts of each case.
(2005); State v. Green,
86 N.J. 281, 289 (1981). We must
consider the entire trial record and the summations of all
counsel. Walker, supra,
322 N.J. Super. at 547. A proper
charge is particularly required when one or both counsel
consider identification a critical issue and argue elements that
should be weighed by the jury in its evaluation of any
Id. at 547, 549.
identification.
It is abundantly clear that identification was a central
and critical issue in the case. The State had to prove that
defendant was the person firing a weapon at Officer Patinho and
Officer Gsavatich and the person who shot Officer Patinho. In
doing so, it relied principally on the testimony of Patinho, who
testified that he saw the passenger riding behind the driver
briefly "peek" out of the rear passenger side window. Based on
that glimpse, Patinho identified defendant at trial as the
shooter. Yet, the jury received no instructions on the elements
it should consider in its evaluation of this identification.
They were not instructed to consider the time-of-day, lighting,
the amount of time the victim had to view his assailant, whether
A-0806-07T4
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the assailant was previously known to the victim, and a host of
other salient factors for the jury's consideration.
Furthermore, defense counsel discussed the shortcomings of
the identification extensively during his summation and the
prosecutor commenced his summation on this issue. This
discussion should have alerted the trial judge to the centrality
of the issue, assuming the use of the term "peek" by the victim
had not already done so. Furthermore, counsels' discussion in
the summation is not a substitute to an explicit instruction by
the trial judge of the myriad factors that should be part of the
evaluation of this critical element of the State's evidence.
Walker, supra,
322 N.J. Super. at 547.
Notably, this court has held, in other cases with
considerably longer periods of interaction between the victim
and assailant, that the omission of an identification charge was
In State v. Frey, 194 N.J.
not only error, but plain error.
Super. 326, 329 (App. Div. 1984), the victim had an opportunity
to view the defendant before she was blindfolded. She
identified her assailant one week later. We held that "[t]he
absence of any eyewitness other than the victim and defendant's
denial of guilt made it essential for the court to instruct the
jury on identification." Ibid. We noted the limited time the
victim had to view the perpetrator before her eyes were taped,
A-0806-07T4
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and that hair, blood and saliva samples found at the scene did
not conclusively match those of the defendant. Ibid.
In State v. Davis,
363 N.J. Super. 556, 559-60 (App. Div.
2003), we reversed the defendant's conviction due to the
omission of an identification instruction even though the
defendant had been identified by two police officers. One
officer identified the defendant from a single photograph
twenty-five minutes after the defendant allegedly sold him drugs
during an undercover operation. Ibid. A second officer
testified that he drove by the sale location shortly after the
transaction and recognized the defendant as someone he knew from
other occasions. Id. at 560. We held that the trial judge
erred because "he gave no instruction whatsoever as to the
State's obligation to prove identification beyond a reasonable
doubt." Ibid.
Here, Patinho was remarkably candid when he described his
view of the person in the rear passenger seat as a "peek." In
addition to the fleeting opportunity to view the shooter, there
were other circumstances that counseled caution in attributing
decisive weight to this identification. It was dark, the
officers and the occupants of both cars had just completed a
high speed pursuit through the darkened streets of Newark,
Patinho never identified defendant until trial, and his partner
A-0806-07T4
21
was unable to identify anyone in the Jaguar. To be sure, Ollie
also testified that defendant was the shooter, but he testified
following conclusion of a favorable plea agreement and in
anticipation of substantially less prison time than defendant.
Furthermore, the evidence establishing defendant as the
shooter cannot be considered overwhelming. Defendant admitted
he was a passenger in the car. Thus, the discovery of items
linked to him in the vicinity of the shootout and his escape
from the scene do not establish he was the shooter. His
placement in the car and his involvement in the shooting were
the critical elements to be proved by the State. The fact of
his injury is not conclusive of his place in the car or his role
in the episode. The number of shots fired that pierced the car
suggest that anyone in the car was at risk of being shot no
matter their place in the vehicle or role in the episode. The
State offered no expert testimony linking defendant's injury and
its theory that he was the driver-side, rear-seat passenger.
Thus, the omission of an identification charge was a critical
error.
We disagree, however, with the contention that the trial
judge was also required to fashion an identification charge
regarding Ollie's testimony about defendant's involvement in
this escapade. As noted, defendant's presence in the vehicle
A-0806-07T4
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was never in doubt. He was also known to Ollie. Thus, the
judge, who has the obligation to instruct the jury on critical
issues in the case, and the jury, which was required to evaluate
his testimony, had no need for counsel on how to evaluate
Ollie's identification of defendant. In fact, Ollie did not so
much identify defendant as to explain the involvement of a
person known to him in a criminal act. The extensive
credibility instruction provided by the trial judge was
sufficient to guide the jury's evaluation of Ollie's testimony.
In summary, we hold that the omission of an identification
charge on Officer Patinho's identification of defendant was a
critical error in this case. We need not decide whether that
error standing alone requires a new trial. As we discuss in the
next section of this opinion, the prosecutor's persistent
denigration of defendant and his attorney throughout the trial
and in his summation, and his "call to arms" in the summation,
coupled with the omission of an identification instruction,
require a new trial.
IV
Defendant argues that the prosecutor engaged in misconduct
throughout the trial, and that misconduct requires a new trial.
Specifically, defendant highlights comments made by the
prosecutor in the presence of the jury that questioned defense
A-0806-07T4
23
counsel's knowledge of the rules of procedure and evidence,
thereby demeaning his competence. Defendant also contends that
the prosecutor erred by calling defendant a liar and attempting
to have defendant characterize the State's witnesses as liars.
In addition, defendant identifies various statements in the
summation that bolstered the credibility of the State's
witnesses, denigrated defendant and his attorney, and challenged
the jury to do their duty and protect society from the scourge
of public gunfights. Regrettably, we agree with defendant that
this experienced prosecutor engaged in multiple acts of
misconduct that cumulatively cannot be countenanced and require
a new trial.
All persons accused of crimes are guaranteed the right to a
fair trial. U.S. Const., amend. VI; N.J. Const. art. I, ¶ 10.
It is well settled that, when a prosecutor engages in improper
conduct during a trial, such behavior can erode a defendant's
E.g. State v. Wakefield,
190 N.J. 397,
right to a fair trial.
446 (2007), cert. denied,
552 U.S. 1146,
128 S. Ct. 1074,
169 L. Ed. 2d 817 (2008); State v. Frost,
158 N.J. 76, 83-84 (1999). A
prosecutor occupies a unique position in the criminal justice
system because his role is not to obtain convictions, but to see
that defendants are treated fairly and that justice is done.
106 N.J. 123, 320 (1987). As such, the
State v. Ramseur,
A-0806-07T4
24
prosecutor must balance that role while vigorously and
forcefully presenting the State's case. Ibid. An appellate
court must be mindful of this balancing act when it considers
whether the prosecutor exceeded the bounds of proper conduct.
Ibid.
Additionally, "Prosecutors are afforded considerable leeway
in their closing arguments. . . ." Frost, supra,
158 N.J. at
82. There remain, however, limitations on what a prosecutor may
say during summation. A prosecutor must
confine [his or her] comments to evidence
revealed during the trial and reasonable
inferences to be drawn from that evidence. .
. . [I]f a prosecutor's arguments are based
on the facts of the case and reasonable
is said in
inferences therefrom, what
discussing them, "by way of comment,
denunciation or appeal, will afford no
ground for reversal."
[State v. Smith,
167 N.J. 158, 178 (2001)
(quoting State v. Johnson (Johnson I), 31
N.J. 489, 510 (1960)) (internal citations
omitted).]
Additionally, prosecutors are permitted to "respond to an issue
or argument raised by defense counsel." State v. Johnson
(Johnson II),
287 N.J. Super. 247, 266 (App. Div.), certif.
denied,
144 N.J. 587 (1996).
To warrant a new trial, the prosecutor's conduct must have
been "so egregious as to deprive defendant of a fair trial."
State v. Timmendequas,
161 N.J. 515, 575 (1999), cert. denied,
A-0806-07T4
25
534 U.S. 858,
122 S. Ct. 136,
187 L. Ed. 2d 89 (2001). In
determining whether a defendant's right to a fair trial has been
denied, the court should look at whether defense counsel timely
objected, whether the remark was withdrawn promptly, whether the
trial judge ordered the remarks stricken, and whether the judge
instructed the jury to disregard them. Ramseur, supra,
106 N.J.
at 322. If no objection was made, the statements are generally
considered not prejudicial. State v. Josephs,
174 N.J. 44, 124
(2003); Timmendequas, supra,
161 N.J. at 576 (citing Ramseur,
supra,
106 N.J. at 322-23).
A. Comments during trial
Defendant argues that the prosecutor laced his responses to
various objections or requests made by defense counsel with
sarcasm and personal attacks against defense counsel. Defendant
contends these comments denigrated his attorney and cast his
defense in a negative light.
During cross-examination of Patinho, the prosecutor stated
in open court that an inquiry by defense counsel about the
existence of a report revealed that defense counsel was not
familiar with the rules of procedure. The following exchange
occurred:
[Defense Counsel]: Were you ever
interviewed by any police?
A-0806-07T4
26
[Officer Patinho]: Afterwards by the
detectives.
[Defense Counsel]: What detectives?
[Officer Patinho]: Det. Palermo, Mark
Palermo
[Defense Counsel]: Is there a report to
that effect?
[Officer Patinho]: I don't know sir.
[Defense Counsel]: Is there a report to that
effect, Mr. Prosecutor[?] If there is, I'd
like to have it.
[Prosecutor]: [Defense Counsel] ought to
know better than that. If he doesn't I
would ask the court to instruct him.
[Defense Counsel]: I don't have it. If
there's a report--
[Prosecutor]: These questions should be
directed to the witness.
[Defense Counsel]: He said he doesn't know.
He said he doesn't know so I am asking [the
prosecutor] if there's a report, I would
like to have it.
[Prosecutor]: Judge, [Defense Counsel]
knows -- maybe we should explain what the
rules of court are to [Defense Counsel].
Apparently, he doesn't know them.
[Emphasis added.]
During the cross-examination of Ollie, defense counsel
inquired whether Ollie knew that defendant had been arrested in
Pennsylvania. When Ollie responded, "No," defense counsel asked
if he knew that "Mr. Rasheem Woods had a card from the officer
A-0806-07T4
27
in Pennsylvania?" The prosecutor objected, and the following
exchange took place:
[Defense Counsel]: What's the objection?
You don't like what the answer is going to
be? What's the objection, counsel? Tell
me, what is the objection?
[Prosecutor]: [Defense Counsel] is assuming
facts not in evidence.
[Defense Counsel]: There is going to be
evidence tomorrow.
[Prosecutor]: Would the Court admonish
[Defense Counsel] that he is acting
unprofessional? He is attempting to put
evidence before the jury which is unsworn.
[Emphasis added.]
Without the judge ruling on the objection or responding to the
prosecutor's entreaty, defense counsel asked again whether Ollie
knew that Woods had a card from the police officer in
Pennsylvania who had arrested defendant. The trial judge
inquired about the relevance of this information, defense
counsel responded, and the trial judge ultimately sustained the
earlier objection. In between, the following exchange occurred:
[Defense Counsel]: Because if Mr. Woods
knows Mr. Bridges was arrested, I would
suspect he would tell Mr. Ollie.
[Prosecutor]: That's an awful lot of
assumptions.
[Defense Counsel]: He can answer the
question, counselor.
A-0806-07T4
28
[Prosecutor]: Judge, again [Defense
Counsel] has this rather annoying habit of
directing questions or comments to me.
[Defense Counsel]: He wrote the book on
annoying but we're not getting into that.
[Prosecutor]: After all, your Honor, we do
have certain rules of courtroom decorum and
I lost count of how many times [Defense
Counsel] has violated them.
[Emphasis added.]
Then, as defense counsel asked Ollie questions about the
interaction between the occupants of the Jaguar and the black
Subaru, the prosecutor stated in the presence of the jury,
"Honestly at some point in time, you know, is [defense counsel]
going to ask a question that's relevant to this?" Obviously
interpreting this remark as an objection, the trial judge
responded, "He is trying to get a feel for what the scene looked
like."
As the cross-examination of Ollie proceeded, defense
counsel posed a series of questions to Ollie about a prior
statement he had given. After the trial judge sustained an
objection on the ground of relevancy, defense counsel directed a
response to the prosecutor in which he stated, "This is called
credibility, counsel." The prosecutor responded, "You know,
maybe [Defense Counsel] would like to take the stand here. He
does like speaking in front of the jury and he does like
A-0806-07T4
29
carrying on. Maybe he should take the stand." At least three
other similar exchanges occurred during the cross-examination of
Ollie.
During defense counsel's summation, the prosecutor
repeatedly interrupted to request the judge to admonish counsel.
For example, during defense counsel's comments about Officer
Patinho's identification of defendant as the shooter, he asked
the jury, "Do you have any reason to believe that he knows what
he's talking about? You have confidence in that identification?
One second look at half a face?" The prosecutor objected and
stated, "I think [Defense Counsel] started off with a second now
we are down to a half." The trial judge simply responded that
the objection was noted.
In addition, defense counsel commented that police did not
take a swab of blood on the front seat of the Jaguar because it
was an old stain. The prosecutor objected on the basis that the
record did not address this issue. The objection was sustained
but defense counsel stated, "Does anybody here think they would
have taken a swab of old blood?" The prosecutor objected again,
the judge sustained the objection, and a further exchange
occurred between the prosecutor and defense counsel. The
exchange ended with the following statement by the prosecutor:
"If [Defense Counsel] wants to conduct himself like this, I am
A-0806-07T4
30
going to ask the Court to admonish him again in front of the
jury because, Judge --" At this point the judge instructed
defense counsel "to move on."
At one point, defense counsel admitted he forgot the
address where the gun was found. The prosecutor interjected
with the address. During the summation, defense counsel made a
reference to a photograph of a phone that he believed had been
admitted in evidence. It seems that defense counsel addressed
the following comment to the prosecutor, "You remember wasn't
there[ ] a photo of. . . ." To which the prosecutor responded,
"I don't know what [Defense Counsel] is trying to pull here."
Another contentious exchange occurred before the judge
instructed the jury "to ignore those comments and this dialog."
Finally, as defense counsel neared the end of his
summation, the prosecutor asked, "How much longer is counsel
going to be?" and the first words out of his mouth in his
summation was, "Good afternoon. How many weeks has it been
now?" Juror No. Three responded, "Three."
A prosecutor is prohibited from "cast[ing] unjustified
aspersions on the defense or defense counsel." Smith, supra,
167 N.J. at 177. "Defense counsel should not be subjected to
disparaging remarks for simply doing his or her job." Frost,
supra,
158 N.J. at 86. In Frost, the Court held the
A-0806-07T4
31
prosecutor's comments during summation that "defense counsel's
closing arguments were 'lawyer talk'" and that defense counsel
"hoped that one or more jurors 'had a bad taste in [their] mouth
towards officers'" were improper. Ibid. Similarly,
prosecutorial misconduct occurred where a prosecutor remarked to
the jury "that defendant's calling of character witnesses was
State v. Neal,
361 N.J. Super. 522, 535
'quite shameless.'"
(App. Div. 2003).
At no time did defense counsel object to the comments made
by the prosecutor. Defense counsel repeatedly responded
directly to the prosecutor in response to objections and
sarcastic comments uttered by the prosecutor rather than
directing his responses to the trial judge. Occasionally, the
judge instructed the jury to ignore the verbal exchanges between
counsel. The net effect of these many exchanges, however, was
to denigrate the competence of defense counsel. The prosecutor
openly stated that defense counsel was not knowledgeable of the
rules of procedure or courtroom conduct. There are a variety of
ways to legitimally undermine a defense; denigrating the
competence of defense counsel is not one of them.
B. Cross-examination of defendant
Defendant testified at trial. Our review of his testimony
suggests that the jury could have reasonably concluded that
A-0806-07T4
32
defendant was a smart aleck, who treated the many serious
charges against him in a cavalier fashion. This attitude,
however, did not serve as the basis for the prosecutor's
sustained attempt to have defendant characterize the State's
witnesses as liars and to seek an acknowledgement from defendant
that he, too, was a liar.
A prosecutor may attempt to persuade the jury that a
witness is not credible and in doing so, "a prosecutor may point
out discrepancies in a witness's testimony or a witness's
interests in presenting a particular version of events."
Johnson II, supra,
287 N.J. Super. at 267. It is, however,
improper for a prosecutor to use derogatory epithets such as
"liar" to categorize a defendant. State v. Pennington,
119 N.J.
547, 576-77 (1990). The Supreme Court has explained that "'[b]y
no stretch of the imagination can it be said that describing
defendant as a "coward," "liar," or "jackal" is not derogatory.
. . . Epithets are especially egregious when . . . the
prosecutor pursues a persistent pattern of misconduct throughout
the trial.'" Wakefield, supra,
190 N.J. 397, 466-67 (2007)
(quoting Pennington, supra,
119 N.J. at 577).
It is impermissible to ask one witness to comment as to
whether another witness is telling the truth. State v. Bunch,
180 N.J. 534, 549 (2004). In Bunch, the Court found the
A-0806-07T4
33
following question to be improper: "So basically you want this
jury to believe that everything that the officers came in here
See also State v. Frisby,
and testified to is untrue?" Ibid.
174 N.J. 583, 594 (2002) (explaining that "the assessment of
In Bunch, the
another witness's credibility is prohibited").
Court found that the comment was not reversible error because of
the overwhelming amount of evidence against the defendant.
Bunch, supra,
180 N.J. at 549.
Here, the prosecutor's cross-examination of defendant
commenced with the following exchange:
[Prosecutor] Mr. Defendant, you are a liar;
are you not?
No, I ain't no liar.
[Defendant]:
[Prosecutor] You're not a liar?
[Defendant]: No.
[Prosecutor] Are you sure?
[Defendant]: Positive.
At various other points in the cross-examination, the prosecutor
insinuated that defendant was lying or focused on instances in
which defendant admitted he had lied.
One such instance occurred when defendant admitted he gave
a false name to the nurse at the hospital in Pennsylvania. The
prosecutor asked defendant, "And anybody that lies about
A-0806-07T4
34
something as basic as that would lie about something that is
more important, isn't that right?"
During his summation, the prosecutor told the jury that
defendant started lying in Pennsylvania and "didn't stop until
he hit the stand." He also argued that someone who would lie
about his name would lie about anything, and stated that
defendant "lied to your faces and told you it was [Ollie] when
the evidence points to one person and one person only and it is
him."
The prosecutor also asked defendant to characterize Patinho
as a liar in the following exchange:
[Prosecutor]: That's a question.
[Defendant]: I am answering it right now.
He would have seen me doing this. He would
have said that I did it.
[Prosecutor]: He did.
[Defendant]: Not twenty-seven months and
twenty days after it happened. He had two
years and some change to say that I did it.
He came and talked to you and the only thing
he said is I did it.
Yeah. And he said that in
[Prosecutor]:
front of these ladies and gentlemen of the
jury.
A prosecutor is barred from asking a defendant to
of another witness. The
characterize the truth or falsity
prosecutor may also not call the defendant a liar. Doing so not
A-0806-07T4
35
only disparages the defendant but also reveals to the jury the
prosecutor's assessment of the credibility of a particular
witness. The prosecutor did both in this trial.
C. The prosecutor's summation
Defendant also argues that the prosecutor improperly
bolstered the credibility of Officer Patinho, and issued an
improper "call to arms." It is a close question whether the
prosecutor improperly bolstered the credibility of Officer
Patinho; we have no doubt, however, that the conclusion of the
summation is a prohibited "call to arms." A prosecutor may not
express a personal belief or opinion as to the credibility of a
State witness. State v. Staples,
263 N.J. Super. 602, 605 (App.
Div. 1993). It is also improper to lionize a police witness as
a good man who leaves his family to work and face danger day and
night. State v. Engel,
249 N.J. Super. 336, 379 (App. Div.),
certif. denied,
130 N.J. 393 (1991).
Here, the prosecutor opened his summation with a frontal
attack on defendant's contention that Officer Patinho could not
possibly have been able to identify defendant as the shooter.
We underscore the portion of the summation cited by defendant as
error but quote extensively from the comments that preceded
these remarks to place the entire statement in context. The
prosecutor argued:
A-0806-07T4
36
Well, I started thinking they were
chasing that car at ninety to one hundred
miles an hour up Orange Street at four in
the morning. What if they had said, you
know, this pursuit is too dangerous, we're
going to break it off. We're not going to
risk our lives or the lives of anyone else
coming along in this pursuit. We're going
to break it off. What would anyone have
known?
You think Sgt. Robles would have known?
Deputy Chief Zisa of the Command Post? Do
you think he would have known? They
wouldn't have known. Besides it would have
been a judgment call on their part. Too
dangerous, we broke it off. But that is not
what they did, is it? They went in pursuit
of that car at ninety to one hundred miles
an hour knowing that the rear seat passenger
was heavily armed and had already fired on
another car. They did their jobs. The ones
who would have known that they were derelict
in their duty if they hadn't pursued that
car were the two officers right there. They
would have known.
They went out and they did their job.
Now, when the car came to a stop at 6th and
7th, they knew that the rear seat passenger
was heavily armed. They had already seen
him fire on that Sub[a]ru. They got out of
the car with their weapons drawn and they
advanced upon it. They did their job
knowing what they were walking into. They
did their jobs.
What happens? The first shot fired,
first round out of the car and what happens?
All together now. Patinho gets hit through
the shoulder, through and through shot.
What did they do then? Did they waiver?
Did they falter? Did they retreat? No.
They stood up as close as I am to you right
now and they opened fire. They shot it out
at point blank range.
A-0806-07T4
37
What did Eddie Patinho say to you? "He
was trying to kill me, I was trying to kill
him." Life reduced to the basic elements.
Kill or be killed. Live or die. That's
what it came down [t]o.
After the gun jammed and the defendant
cleared the weapon and he fired again and
hit Patinho in the face, what did he do?
Did he falter? Did he waiver or did he
retreat? He doesn't do any of that. He
stood up there, didn't even seek cover and
he fired until he was empty. Even then,
even then, did he falter? Does he waiver?
Did he retreat?
He tried to reload his weapon, wasn't
able to do so. Why? His hands were so full
of blood. Fired off thirteen rounds and his
partner, after he was hit fired another
four. Why does she stop shooting? She
didn't have a target. Suspect in the back
had slumped down. You don't just shoot at a
car. That's a great way to burn up your
ammo and you're left with nothing.
She didn't have a target. She stopped
shooting. She went to the aid of her
partner. Car rolled down the street and
came to a stop right here on the corner.
You saw on the photographs.
Ladies and gentlemen of the jury, these
two officers did their jobs in the face of
all of that. They did their jobs.
[Defense Counsel] asked a question
before and said basically how could Officer
Patinho remember this face that he saw? He
wanted you to believe it was just a second
that he saw him. It was more than that.
Let me digress for a second. This
morning before you came here, did you brush
your teeth? Did you comb your hair? Did
A-0806-07T4
38
you put on your make up? Gentlemen, did you
shave? Do all that in front of a mirror
this morning?
How many times in the course of the day
do you look in a mirror and maybe you see a
little more gray in the hair, see another
line there, you know, maybe I need a hair
cut? What do you think Officer Patinho sees
every day when he looks in the mirror? He
sees what you saw, [he] sees the scar there.
[DEFENSE COUNSEL]: I am going to
object. This has nothing to do with
evidence, Judge. It's engineered to create
passion and emotion.
[THE PROSECUTOR]: I am about to get to
the point very quickly. The jury had the
opportunity to observe Mr. Patinho and his
injuries.
[DEFENSE COUNSEL]: I understand that,
Judge.
THE COURT: He's commenting upon the
injuries.
[THE PROSECUTOR]: He[] sees that scar
and do you think that he remembers that
morning every time he looks at that? Do you
think that he doesn't relive that every time
that he looks in the mirror and sees that?
That is a permanent reminder.
Ladies and gentlemen of the jury, the
question is not how could he ever forget the
face? He stood and he looked in the face of
death. That is not an exag[g]eration. That
was in the form of that man sitting right
there. Him and his Tech Nine spitting out
rounds out of the window.
The question, ladies and gentlemen of
the jury is not how could you remember? The
question is how do you ever forget? Until
A-0806-07T4
39
the day he dies he's never going to forget
that. [Defense counsel] -- no, better yet,
the defendant's on the stand yesterday would
have you believe that we spent two years
preparing this man to testify to point him
out.
Look at this man, ladies and gentlemen
of the jury. Take a look at him. He's
sitting right here now. This is the man
along with his partner who went in pursuit
of suspects ninety to one hundred miles an
hour about a mile, confront them at gun
point, stood toe to toe and shot it out with
them.
Do you think a man like this is going
to come in here and misidentify someone?
[Defense counsel] was right. The shooter
should pay. Do you think that these two
officers are going to come in here and
identify someone who wasn't the shooter? Do
any of you think that man would do that?
Oh, he wants the guy who did that to him.
Sure he does and he knows who it was. He
pointed him out to you.
Ladies and gentlemen of the jury, there
is nothing like gun fire directed at you to
focus your attention and the defendant fired
not once, not twice, he fired at least eight
times. Remember how many shell casings were
found. One was found in the car, seven were
found outside. He had to lean out to fire
the weapon.
[Emphasis added.]
The prosecutor never alluded to any consequences to either
officer if they lied to the jury. The prosecutor did, however,
come dangerously close to telling this jury that these officers,
who risked their lives and faced down these dangerous men to
A-0806-07T4
40
protect the public every day, made them more worthy of belief.
As in Engel, we cannot condone any suggestion that these
officers are entitled to enhanced credibility simply due to
their status as police officers. Read as a whole, however, this
portion of the summation is a direct response to defense
counsel's strong argument that the circumstances of his
encounter with defendant could never provide the basis for an
accurate identification. Although it is a close question, we
are not persuaded that the prosecutor crossed the line.
Defendant also argues that the closing portion of the
prosecutor's summation was a prohibited "call to arms." While a
prosecutor is "expected to make vigorous and forceful closing
arguments to juries," Smith, supra,
167 N.J. at 177, prosecutors
must refrain from making inflammatory and highly emotional
appeals that "possess[] the capacity to anger and arouse the
jury and thereby divert them from their solemn responsibility to
State v. Marshall, 123
render a verdict based on the evidence."
N.J. 1, 161 (1991), cert. denied,
507 U.S. 929,
113 S. Ct. 1306,
122 L. Ed. 2d 694 (1993). There is a class of these comments
commonly referred to as "send a message to the community" or
"call to arms" comments. See Neal, supra,
361 N.J. Super. at
537 (where defendant, former Board of Education member, appealed
conviction for perjury resulting from investigation into
A-0806-07T4
41
improper expenditures). "[P]rosecutors are not permitted to
encourage juries to convict . . . on the basis of societal duty.
Josephs, supra,
174 N.J. at 125. Such comments have
. . ."
been held to constitute prosecutorial misconduct because their
intent is "to promote a sense of partisanship with the jury that
is incompatible with the jury's function." Neal, supra,
361 N.J. Super. at 537. These types of comments "improperly divert
jurors' attention from the facts of the case. . . ." Id. at
537-38.
The prosecutor closed his summation with the following
comment:
Ladies and gentlemen of the jury, a
crime has been committed, very serious and
very deadly crime. There is something that
you can do about that. You can see that
These two officers, they
justice is done.
were on duty and it's now time for you to do
your duty.
I am not asking you to stand up against
desperate criminals as they are shooting at
you. I am not asking you to do that. I am
going to ask you to see that justice is
done.
Now, ladies and gentlemen of the jury,
the last question I will ask of you is
simply this: It's a question and you're the
only ones that can answer it. Are you going
to see that justice is done in this case?
A-0806-07T4
42
This is precisely the argument condemned by the Supreme Court.
See Josephs, supra,
174 N.J. at 125 (condemning a plea to accept
and discharge the jury's duty to society).
On the other hand, we find no error to the prosecutor's
argument that defense counsel's argument defied logic.
Most of the comments cited by defendant as prosecutorial
error come before us as plain error. Defense counsel objected
rarely. The lack of objection suggests that defense counsel did
not consider the sarcastic and caustic remarks or the call to
arms in the summation as detrimental to his case. Frost, supra,
158 N.J. at 84; Ramseur, supra,
106 N.J. at 323. The lack of
objection also deprived the trial judge the opportunity to craft
an effective charge to deflect the barbs and minimize any
prejudice to the defense. Frost, supra,
158 N.J. at 84.
Some of the sarcastic remarks by the prosecutor were in
response to comments directed at him by defense counsel. The
trial judge should have instructed defense counsel to direct any
and all remarks to him not to the prosecutor. The failure to do
so allowed the improper exchanges between the attorneys to
persist throughout the trial. Of greater significance, however,
was the tenor of the remarks by the prosecutor. Repeatedly, he
uttered sarcastic, caustic and demeaning remarks. The content
and tone of the comments clearly suggested to the jury that
A-0806-07T4
43
defense counsel was inept, and it could not rely on his efforts
to mount a defense to these serious charges.
The problem created by the prosecutor's disparaging remarks
was compounded by his summation in which he came perilously
close to vouching for the credibility of the officers and then
issued an unmitigated call to arms. Cumulatively, we have a
trial record that disparaged defense counsel and the defense,
improperly challenged defendant to characterize the State's
witnesses as liars, disparaged defendant as a liar, suggested
that the defense wasted the jury's valuable time, and closed
with a call for the jury to discharge its duty to society.
These cumulative errors by the prosecutor raise grave doubts
that defendant received a fair trial. Coupled with the failure
to give an identification charge to guide the jury's evaluation
of Patinho's in-court identification of defendant as the
shooter, we must reverse and remand for a new trial.
Reversed and remanded.
A-0806-07T4
44
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