STATE OF NEW JERSEY v. DARRYL SMITH

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1067-19

STATE OF NEW JERSEY

Plaintiff-Respondent,

DARRYL SMITH,

Defendant-Appellant.
________________________

Submitted October 25, 2021 – Decided November 17, 2021

Before Judges Sabatino and Mayer.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment Nos. 18-11-0995
and 18-11-0998.

Joseph E. Krakora, Public Defender, attorney for
appellant (Candace Caruthers, Assistant Deputy Public
Defender, of counsel and on the briefs).

Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Catlin A. Davis, Deputy Attorney General,
of counsel and on the brief).

PER CURIAM
Defendant Darryl Smith appeals from judgments of conviction dated

October 9, 2019. Specifically, he challenges denial of his motion for a mistrial

based on statements uttered by a trial witness and various instances of

prosecutorial misconduct during opening and closing statements. We affirm.

The following facts were adduced during defendant's trial for attempted

sexual assault.

On August 29, 2018, defendant was found unconscious in Jersey City.

The responding police officers called for an ambulance and defendant went to

an area hospital. In diagnosing defendant's condition, the hospital staff

determined defendant suffered an accidental drug overdose. Several hours after

entering the hospital, defendant left without being officially discharged by the

hospital.

After he left the hospital, defendant encountered a woman, D.C.,1 on a

street near the hospital. Defendant tackled D.C., held her down, and tried to

spread her legs. During the attack, defendant tore D.C.'s dress and ripped D.C.'s

underwear. While D.C. was screaming and fighting defendant, a man walked

by and attempted to pull defendant off D.C. Defendant resisted until a second

1
We refer to the victim by her initials pursuant to R. 1:38-3(c)(12).
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man helped subdue defendant. After the men pulled defendant off D.C.,

defendant got up and "walked away like nothing ever happened."

D.C., accompanied by the two men, pursued defendant. D.C. followed

defendant, seeking to identify her attacker by taking his photograph. D.C. also

called 9-1-1.2

In response to the 9-1-1 call, the police arrived at the scene and arrested

defendant. Defendant returned to the same hospital because the police believed

defendant to be "under the influence of something." After being cleared by the

hospital's medical staff, defendant was transported to the police station and

charged with second-degree attempted sexual assault on D.C.

In an unrelated incident occurring the day before his attack on D.C.,

defendant admitted to arguing with another woman, S.S., and striking her in the

face while wearing a ring. Defendant's ring left a wound on S.S.'s face, requiring

stitches. Defendant was separately charged with second-degree aggravated

assault and third-degree burglary stemming from the incident involving S.S.

2
The State filed a motion to admit the 9-1-1 call. After a testimonial hearing,
the judge granted the State's motion, allowing admission of the call at trial,
subject to redactions not relevant to this appeal.
A-1067-19
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Defendant proceeded to trial on the attempted sexual assault charge

involving D.C. The trial on the charges involving the attack on S.S. awaited the

outcome of the trial on the charge involving defendant's attack on D.C.

D.C. testified at trial. She provided emotional testimony regarding

defendant, telling the jury she was attacked by "this ugly piece of sh**."

Immediately following this remark, the judge instructed a court officer to

remove the jury from the courtroom. When the jury left the courtroom, while

D.C. remained seated at the witness stand, a representative associated with the

victim assistance unit approached D.C. Within earshot of some jury members,

the judge stopped the representative before she could reach D.C. The judge

admonished the victim assistance unit representative and reminded her "[t]his is

not the prosecutor's office" and she must "not to interfere when [the court is] on

the record."

After excusing the jury, the judge sought counsels' advice regarding a

curative instruction. Neither counsel offered any suggestions, leaving the judge

to formulate his own curative instruction.

When the jury returned to the courtroom, the judge issued a curative

instruction regarding D.C.'s outburst. The judge informed the jury the testimony

might get emotional, but the jury must decide defendant's guilt or innocence

based purely on the evidence and the law, not emotions. He emphasized to the

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jury that D.C.'s derogatory comment regarding defendant should not factor into

the jury's final decision, reiterating the jury must focus on the evidence and the

law. Neither counsel lodged any objection after the judge issued this curative

instruction. On the record, the judge noted the jurors understood his instruction

because all fourteen members of the jury shook their heads in assent to the

judge's statements. The judge then declared a lunch recess.

After lunch, defense counsel moved for a mistrial based on D.C.'s

derogatory statement regarding defendant. The judge denied the motion, finding

his prompt curative instruction sufficiently cured any minimal prejudice caused

by D.C.'s statement.

After four days of testimony, counsel presented closing arguments to the

jury. During closing arguments, the prosecutor commented on D.C.'s demeanor

during her 9-1-1 call to the police. Additionally, the prosecutor responded to

defense counsel's challenges to the victim's credibility. Further, defendant

claimed the prosecutor's closing statement belittled defendant's intoxication

defense as an "excuse" for his crime and an effort to obtain a "free pass."

The jury found defendant guilty of attempted sexual assault. After the

guilty verdict, the State extended a plea offer to defendant related to the charges

in the other incident with S.S. On the second-degree aggravated assault charge,

the State proposed reducing the charge to fourth-degree aggravated assault and

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dismissing the remaining third-degree burglary charge. The State agreed to

recommend imposition of an eighteen-month sentence to be served concurrently

with the sentence for attempted sexual assault on D.C.

On October 7, 2019, consistent with the negotiated plea agreement, the

judge sentenced defendant to an eight-year prison term for the attempted sexual

assault on D.C. and a concurrent sentence of eighteen-months for the aggravated

assault on S.S. Additionally, the judge ordered defendant follow the reporting

and registration requirements under Megan's Law, N.J.S.A. 2C:7-1 to -23,

prohibited any contact with the D.C. under Nicole's Law, N.J.S.A. 2C:44-8; and

imposed Parole Supervision for Life, N.J.S.A. 2C:43-6.4.

On appeal defendant raises the following arguments:

POINT I

REVERSAL IS REQUIRED BECAUSE THE COURT
ERRONEOUSLY DENIED A MISTRIAL
FOLLOWING AN EMOTIONAL OUTBURST BY
THE VICTIM CALLING THE DEFENDANT AN
"UGLY PIECE OF SH**" AND AN EMPLOYEE OF
THE VICTIM ASSISTANCE UNIT RUSHING
TOWARD THE WITNESS STAND.

POINT II

RELATED INSTANCES OF PROSECUTORIAL
MISCONDUCT DENIED DEFENDANT A FAIR
TRIAL.

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A. The Prosecutor Impermissibly Argued Throughout
Trial that the Jury Should Convict Defendant so that the
Victim's "Strength" and "Tremendous Courage" in
Confronting Defendant Would Not Be in Vain.

B. The Prosecutor Improperly Denigrated the Defense
by Labeling the Defense of Intoxication as a Mere
"Excuse" and Inaccurately Describing Attempt as a
"Free Pass."

We review a trial court's denial of a motion for a mistrial for abuse of

discretion. State v. Herbert, 457 N.J. Super. 490, 503 (App. Div. 2019) (citing

State v. Winter, 96 N.J. 640, 647 (1984)). We will not disturb a ruling on a

mistrial motion "absent an abuse of discretion that results in a manifest

injustice." State v. Smith, 224 N.J. 36, 47 (2016) (citing State v. Jackson, 211 N.J. 394, 407 (2012)). Whether inadmissible evidence presented to a jury

warrants a mistrial or a cautionary instruction is "peculiarly within the

competence of the trial judge." Winter, 96 N.J. at 646-47.

If there is "an appropriate alternative course of action," denial of a mistrial

is within the trial court's discretion. State v. Allah, 170 N.J. 269, 281 (2002).

Alternative courses of action include a curative instruction, short adjournment

or continuance, or some other remedy that may provide a viable alternative to a

mistrial. Smith, 224 N.J. at 47. "The same deferential standard that applies to

the mistrial-or-no-mistrial decision applies to review of the curative instruction

itself." Herbert, 457 N.J. Super. at 503 (citing Winter, 96 N.J. at 647).

A-1067-19
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In deciding a motion for a mistrial, a court should consider the following

factors: (1) "the nature of the inadmissible evidence the jury heard, and its

prejudicial effect"; (2) whether the instruction was issued swiftly and firmly;

and (3) "tolerance for the risk of imperfect compliance" by a jury. Herbert, 457 N.J. Super. at 505-07. In electing to provide a curative instruction rather than

granting a mistrial, judges are to presume a jury is "capable of following a

curative instruction to ignore prejudicial matter." Williams v. James, 113 N.J.
619, 632 (1989).

Defendant argues the judge should have granted his motion for a mistrial

because defendant was denied "due process and a fair trial." He contends D.C.'s

outburst was so prejudicial no curative instruction would suffice.

For the first time on appeal, defendant also asserts the judge's curative

instruction was flawed because the judge failed to instruct the jury to disregard

the actions of the victim assistance unit representative in response to D.C.'s

emotional outburst. He claims the judge admonished the representative while

the jury was in the courtroom and the rebuke allowed the jury to "impermissibly

speculate about what [the representative's] role might be." We reject both

arguments.

The judge gave the following instruction to the jury:

A-1067-19
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things happen in life, right? People get emotional,
people do not become emotional. . . . I see it every day.
You're going to need to deal with that in this case. And
you all heard what the charge [was] when you first
walked through the door on Tuesday. Okay? You need
to decide the case – I know it's going to be somewhat
emotional, but you're going to need to do your best to
decide the case based on . . . the evidence and the law.
And even though there's emotion out there, you're going
to need to put the emotion aside. Okay?

....

Someone got emotional, that's fine. But the part about,
you know, calling someone a name, you know, you
can't consider that during deliberations. Okay?
Everyone understands that? Very good.

I'm sure you all can put that aside and judge the case
based just on the evidence and based on the law,
correct? Okay. I have 14 heads shaking, so we'll take
a little bit longer for lunch.

After the lunch recess, and before the jury returned to the courtroom, the

judge provided a detailed recitation of the "tumult" that occurred prior to the

recess in the event "the [A]ppellate [D]ivision is reading the record" in the

future. On the record, with only counsel present in the courtroom, the judge

stated

I think the witness became emotional. . . . I'm
shrugging. I know this is not the video courtroom.
That's not a problem, right? Witnesses become
emotional, we'll deal with that. [The Appellate
Division] may not understand the first part, and I say
this respectfully, with what I was just talking about.

A-1067-19
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When I said, why don't we take the jurors out, the jurors
were on their way but in the courtroom.

....

. . . you have a terrific victim-witness assistance, but I
can't have people coming up to the witness who's being
very emotional and then I'm thinking in my mind are
we going to have Michaels[3] type problems, like, is
somebody going to start hugging the witness and the
jurors are looking. And that was the [j]udge's reaction.
Okay?

. . . because there was someone from the prosecutor's
[office] . . . I don't think anybody planned anything.
Something emotional happened and everybody just
reacted. So, I don't think anybody was behaving in bad
faith. . . . so the record's clear, that was more my issue.

Regarding the reaction of the victim assistant unit representative in

response to D.C.'s outburst, the judge continued,

if I didn't put my finger up and say no, you're not a
participant, she would have been up at the witness
[stand]. I don't know what would have happened.
Hopefully nothing.

....

And she did not make it [to the witness stand] – and I'm
not accusing anyone of doing anything nefarious. I
don't think . . . that – not for one minute do I think that
was anyone's intent. There was some emotion and there
was a reaction. I probably would have had the same
reaction. I understand, but no, she didn't make it

3
State v. Michaels, 264 N.J. Super. 579, 615-16 (App. Div. 1993), aff'd on other
grounds, 136 N.J. 299 (1994).
A-1067-19
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anywhere near [the witness], but I would dare – but I
had to put my hand up and say no, stop, or whatever I
said.

After the judge made this statement on the record, prior to the jury

returning to the courtroom, defense counsel requested a mistrial based on D.C.'s

outburst on the witness stand. Defendant's attorney argued "it was such a

dramatic event and it certainly raises the possibility of this jury being tainted by

her actions."

In denying the motion, the judge stated:

If someone who believes they're the victim of an
attempted sexual assault gives an angry outburst, do I
understand? Of course I understand. But does my
understanding overcome that there should be a mistrial
or not in this matter? Okay.

She's entitled to feel how she wants. She can be
emotional. I mean, she could sit next to me and I could
tell her, please don't be emotional. I don't think
anybody in the room thinks that's going to work, right,
with somebody . . . who has certain feelings . . . but . .
. I'm not convinced at this point that there's been any
prejudice at this point in time.

I gave an instruction to the jurors. . . . I think I give
mine a little bit less formal than some other judges and
I kind of look at the 14 [jurors] and I say, you hear what
I said? Everybody can do that . . . even though there's
emotion in the courtroom, everybody can base this case
on only the law and the facts and not your emotions?
And the 14 of them shook their heads yes.

A-1067-19
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We first consider defendant's claim the curative instruction was deficient

because the judge did not address the actions of the victim assistance unit

representative. However, defendant never raised the issue as part of his mistrial

motion. If a party does not object or raise an issue at the trial level, we review

the matter for plain error. State v. McKinney, 223 N.J. 475, 494 (2015); see R.

2:10–2 ("Any error or omission shall be disregarded by the appellate court

unless it is of such a nature as to have been clearly capable of producing an

unjust result . . . ."). An error will be disregarded unless "a reasonable doubt

has been raised whether the jury came to a result that it otherwise might not have

reached." State v. R.K., 220 N.J. 444, 456 (2015).

We perceive no error let alone plain here. Even if the jury recognized the

victim assistance unit representative was part of the prosecution's team,

defendant failed to articulate how the jury's verdict would have been different

absent the representative's actions. While not directing his jury instructions

specifically to the actions of the victim assistance unit representative, the judge

emphasized the jury's decision must be based solely on the evidence and the law.

We next consider defendant's argument that a mistrial should have been

granted because the curative instruction regarding D.C.'s outburst failed to cure

the resulting prejudice. Here, the judge addressed the applicable factors in

deciding the mistrial motion. D.C.'s outburst was minimized by the judge

A-1067-19
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referring to her remarks as improper name calling and advised the jury on several

occasions they were required to render a decision based solely on the evidence

and the law. His instruction was issued swiftly and firmly. See State v. Vallejo,

198 N.J. 122, 134-35 (2009). After issuing the curative instruction, the judge

noted each juror nodded, indicating their assent, when he asked if the jury

understood his instruction regarding D.C.'s outburst. Based on the jurors'

reaction, the judge correctly presumed the jury would follow his instruction.

We are satisfied the judge properly exercised his discretion in denying

defendant's mistrial motion.

Not only do we discern no abuse of discretion in the judge's denial of

defendant's mistrial motion, but we commend the trial judge's handling of the

situation. A judge who finds himself or herself in a situation involving an epithet

uttered by an emotional witness during a trial, and the attendant circumstances

following the utterance of curse words or other invective statements, would be

well-served to follow Judge Mark J. Nelson's actions by addressing the situation

calmly and deliberatively, and immediately issuing prompt instructions to the

jury.

We next consider defendant's arguments regarding instances of

prosecutorial misconduct during closing statements. Defendant advances four

specific instances of misconduct: (1) the prosecutor inappropriately reminded

A-1067-19
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the jury about D.C.'s emotional outburst on the witness stand; (2) the prosecutor

impermissibly made an emotional appeal to the jury, stating the jury should

convict defendant so that D.C.'s "strength" and "tremendous courage" would not

be in vain; (3) the prosecutor improperly expressed a personal opinion regarding

D.C.'s character traits, violating the duty to refrain from expressing personal

belief about the truth of the witness's testimony; and (4) the prosecutor

denigrated defense counsel's closing argument by labeling the intoxication

defense as an "excuse" and a "free pass." We disagree any of these statements

by the prosecutor evidenced misconduct warranting a new trial.

Because defense counsel failed to object to the prosecutor's comments as

prejudicial during the course of the trial, we review the issues for plain error.

R.K., 220 N.J. at 456; R. 2:10-2. In addition to demonstrating the prosecutor's

comments constituted error, defendant must demonstrate the possibility of an

injustice flowing from the comments "sufficient to raise a reasonable doubt as

to whether the error led the jury to a result it otherwise might not have reached."

State v. Macon, 57 N.J. 325, 336 (1971).

"Prosecutors are afforded considerable leeway in closing arguments as

long as their comments are reasonably related to the scope of the evidence

presented." State v. Frost, 158 N.J. 76, 82 (1999) (citing State v. Harris, 141 N.J. 525, 559 (1995)). Prosecutors in criminal cases are expected to make

A-1067-19
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vigorous and forceful closing arguments to juries. State v. Williams, 244 N.J.
592, 607 (2021) (citing Frost, 158 N.J. at 82). "[A]s long as the prosecutor stays

within the evidence and the legitimate inferences therefrom, [t]here is no error."

Ibid. (second alteration in original) (internal quotation marks and citation

omitted) (quoting State v. McNeil-Thomas, 238 N.J. 256, 275 (2019)).

As a general rule, it "is improper for a prosecutor to express his personal

opinion on the veracity of any witness." State v. Rivera, 437 N.J. Super. 434,

463 (App. Div. 2014) (citing State v. Marshall, 123 N.J. 1, 154 (1991)).

However, not all expressions of opinion are so inherently prejudicial to require

a new trial. If defense counsel fails to object contemporaneously to the

prosecutor's comments, "the reviewing court may infer that counsel did not

consider the remarks to be inappropriate." State v. Vasquez, 265 N.J. Super.
528, 560 (App. Div. 1993) (citing State v. Johnson, 31 N.J. 489, 511 (1960)).

Applying these principles, we discern no plain error in the prosecutor's

statements to the jury during closing argument.

Contrary to defendant's argument, the prosecutor did not refer to D.C.'s

emotional comments on the witness stand during summation. The prosecutor

simply told the jury "[y]ou saw [D.C.] testify yesterday." The prosecutor asked

the jury to remember the harm suffered by D.C. based on her own testimony,

describing defendant's attack, not the emotional outburst on the stand.

A-1067-19
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Nor did the prosecutor's comments about D.C.'s courage and strength rise

to the level of plain error. During cross-examination and closing argument,

defense counsel attacked D.C.'s credibility, attempting to cast doubt on various

aspects of her testimony. The prosecutor's statements regarding D.C.'s courage

in following defendant to provide a description to the police and her " strength"

in testifying and confronting defendant at trial were intended to demonstrate

D.C.'s credibility as a witness, not to inflame the jury. Moreover, the

prosecutor's statements did not express a personal belief about D.C.'s strength

and courage. He merely observed D.C. demonstrated strength by confronting

her attacker in providing trial testimony and displayed courage by following her

attacker to identify him to the police.

Even if the prosecutor impermissibly expressed a personal opinion about

D.C.'s courage and strength, the references were too fleeting to constitute plain

error. Where a prosecutor's remarks were "fleeting" and "accompanied by an

appropriate charge by the trial judge instructing . . . that counsel's comments are

not evidence," the remarks do not constitute plain error. State v. Jang, 359 N.J.

Super. 85, 97 (App. Div. 2003).

The prosecutor's characterization of D.C. was fleeting, and the judge

instructed the jury to disregard any perceived bias, passion, prejudice, or

sympathy and to decide the case based solely on evidence. The judge expressly

A-1067-19
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stated "[a]rguments, statements, remarks, openings, and summations of counsel

[were] not evidence and must not be treated as evidence." On this record,

defendant failed to proffer any evidence the jury would have reached a different

outcome had the prosecutor had not made these statements during closing

argument.

We next examine defendant's claim the prosecutor's description of the

intoxication defense as an "excuse" and a "free pass" constituted prosecutorial

misconduct. Again, defense counsel did not object when the prosecutor made

these statements during closing argument. Thus, we review the prosecutor's

statements for plain error.

Here, the prosecutor correctly stated the law regarding attempted sexual

assault several times during his closing argument. He told the jury the State has

to prove that "defendant purposely took a substantial step towards the

completion of an act of sexual penetration." In addition, defense counsel

accurately stated the State's burden of proof during closing argument. More

importantly, the judge instructed the jurors they were to follow his instructi ons

and not be guided by any description of the law provided by either counsel.

Defendant's reliance on State v. Rodriguez, 365 N.J. Super. 38 (App. Div.

2003), in support of his argument is misplaced. In Rodriguez, the prosecutor

repeatedly characterized the defendant's insanity defense as an excuse to avoid

A-1067-19
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a conviction for murder. Id. at 49-52. Here, the prosecutor's use of the word

"excuse" on two occasions during closing argument was not as prejudicial or

egregious as the statements by the prosecutor in Rodriguez. We are satisfied the

prosecutor's use of the words "excuse" and "free pass" did not constitute plain

error as there was overwhelming evidence in this case to support the jury's guilty

verdict.

Because we reject each of the errors raised by defendant on appeal, we

conclude there were no cumulative errors entitling defendant to a new trial.

Even where a defendant alleges several trial errors, "the theory of cumulative

error will still not apply where no error was prejudicial and the trial was fair."

State v. Weaver, 219 N.J. 131, 155 (2014).

To the extent not addressed, we determine defendant's remaining

arguments are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2).

Affirmed.

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