State of New Jersey v. Geraldo Rivera

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4887-11T1

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION

Plaintiff-Respondent, October 10, 2014

v. APPELLATE DIVISION

GERALDO RIVERA, a/k/a GERARDO DIAZ
and JUAN RIVERA,

Defendant-Appellant.
____________________________________

Argued January 23, 2014 – Decided October 10, 2014

Before Judges Grall, Nugent and Accurso.

On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
No. 11-03-0331.

Joseph J. Benedict argued the cause for
appellant (Benedict and Altman, attorneys;
Mr. Benedict and Philip Nettl, on the
brief).

Nancy A. Hulett, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Andrew C. Carey,
Acting Middlesex County Prosecutor,
attorney; Ms. Hulett, of counsel and on the
brief).

The opinion of the court was delivered by

GRALL, P.J.A.D.
 A grand jury charged defendant Geraldo Rivera with

attempting to murder Sean and Michael Burns during a fight that

started at a bar inside a liquor store and ended in the parking

lot. The jury acquitted defendant of those charges but

convicted him of lesser-included offenses: with respect to Sean,

second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); and with

respect to Michael, fourth-degree aggravated assault, N.J.S.A.

2C:12-1b(3).1

The judge sentenced defendant to eight years' imprisonment

for the second-degree assault, subject to terms of parole

ineligibility and supervision required by the No Early Release

Act, N.J.S.A. 2C:43-7.2, and to a concurrent fifteen months'

imprisonment for fourth-degree assault. The judge also imposed

the monetary assessments and penalty mandated by N.J.S.A. 2C:43-

3.1 to -3.3, and a $3658 restitution obligation, a total of

$4038.

Certain facts were undisputed. The fight, verbal at first,

started after defendant questioned Sean about not leaving a tip

for the bartender, who was then defendant's fiancée. It ended

1
The grand jurors also indicted Sandeep Yadav and Sabiq Ponder
and charged them with tampering with evidence, two counts of
hindering apprehension and obstruction of a criminal
investigation. N.J.S.A. 2C:28-6(a), :29-1, :29-3a(4). Prior to
defendant's trial, Ponder was admitted to pre-trial intervention
and Yadav pled guilty. Ponder testified for the defense at
trial, and Yadav did not testify.

2 A-4887-11T1
with broken bottles inside and outside the establishment; Sean

with four knife wounds to his torso; Michael with a cut across

his abdomen that exposed his intestines and injured his stomach;

and defendant with two head wounds and a scar on his forehead.

The defense was self-defense. Defendant admitted to

swinging a utility knife he carried because of his work as a

linesman to defend himself against what he believed would be a

fatal "stomping" from the brothers. He also admitted that he

stabbed Sean and cut Michael in the process. Michael

acknowledged striking defendant in the head with a piece of

asphalt, which he claimed to have done because he saw defendant

stabbing Sean.

The participants in the fight - defendant, Michael and Sean

— and their respective eyewitnesses gave widely divergent

accounts of what happened between defendant's criticism of Sean

and the arrival of the police. Each side cast the other as the

aggressor, and there was no medical testimony. Thus, in

deciding whether the State proved that defendant was not acting

in self-defense, the jury had to decide between the conflicting

accounts of who did what and when.

The details of the conflicting accounts are not important

to resolution of the issues raised on this appeal. There is no

question that the evidence and reasonable inferences, viewed in

3 A-4887-11T1
the light most favorable to the State, provide adequate support

for the jury's verdict. Jackson v. Virginia, 443 U.S. 307, 319,

99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (constitutional standard

for evidence adequate to withstand a motion for judgment of

acquittal); State v. Reyes, 50 N.J. 454, 459 (1967) (same). All

of defendant's claims concern the conduct of the assistant

prosecutor who tried the case, which defendant contends deprived

him of a fair trial. His contentions are as follows:

I. The State's violation of the [o]rder
sanitizing his prior convictions should
have resulted in a mistrial. (Raised
below).

II. The State's misconduct in climbing into
the jury box in the middle of cross-
examination of State's witness should
have resulted in a mistrial. (Raised
below).

III. The trial court erred in permitting
the introduction of hearsay statements
Michael Burns made to Officer McCauley,
which was compounded by the misuse of
those statements in the State's
summation. (Partially raised below).

IV. The State's comments in opening and
summation deprived [d]efendant of a
fair trial. (Partially raised below).

A. The State introduced an unduly
prejudicial visual presentation
during its opening statement which
expressed an opinion as to
[d]efendant's guilt in inflammatory
ways. (Raised below).

B. The State improperly vouched for the

4 A-4887-11T1
 credibility, or lack thereof, of
witnesses in summation. (Not raised
below).

C. The State misstated the law.
(Raised below).

V. Cumulative error deprived [d]efendant
of a fair trial.

For the reasons that follow, we conclude that the

cumulative impact of the assistant prosecutor's conduct deprived

defendant of a fair trial.

A.

The well-established principles guiding prosecutorial

conduct are easily stated and not unique to New Jersey. "[T]he

primary duty of a prosecutor is not to obtain convictions but to

see that justice is done. 'It is as much [a prosecutor's] duty

to refrain from improper methods calculated to produce a

wrongful conviction as it is to use every legitimate means to

bring about a just one.'" State v. Timmendequas, 161 N.J. 515,

587 (1999) (internal citation omitted) (quoting State v.

Farrell, 61 N.J. 99, 105 (1972) (quoting Berger v. United

States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314,

1321 (1935))).

This case demonstrates the need to stress what those

principles require. Prosecutors must choose their tactics in

conformity with their legal duties. Thus, they are not free to

5 A-4887-11T1
employ a prejudicial tactic just because the precise action has

not yet been expressly condemned by the Supreme Court.

Similarly, when a reviewing court has declared a method improper

in a published opinion but concluded it to be harmless error in

that case, compliance with the prosecutor's obligation does not

permit repetition. A finding of harmless but improper

prosecutorial conduct cannot, consistent with a prosecutor's

duty, be understood as a license to mimic an improper method.

In this case, the cumulative impact of the prosecutor's

transgressions requires reversal. As the Supreme Court has

recently explained:

When legal errors cumulatively render a
trial unfair, the Constitution requires a
new trial. State v. Orecchio, 16 N.J. 125,
129 (1954). "'[W]here any one of several
errors assigned would not in itself be
sufficient to warrant a reversal, yet if all
of them taken together justify the
conclusion that defendant was not accorded a
fair trial, it becomes the duty of [a
reviewing] court to reverse.'" Id. at 134
(quoting State v. Dolliver, 150 Minn. 155,
184 N.W. 848, 849 (1921)). If a defendant
alleges multiple trial errors, the theory of
cumulative error will still not apply where
no error was prejudicial and the trial was
fair. See State v. D'Ippolito, 22 N.J. 318,
325-26 (1956) (rejecting application of
Orecchio because none of alleged errors
prejudiced defendant nor impaired fair
trial). In assessing whether a defendant
received a fair trial, courts are guided by
the following principle: "'[D]evised and
administered by imperfect humans, no trial
can ever be entirely free of even the

6 A-4887-11T1
 smallest defect. Our goal, nonetheless, must
always be fairness. A defendant is entitled
to a fair trial but not a perfect one.'"
State v. Wakefield, 190 N.J. 397, 537 (2007)
(quoting State v. R.B., 183 N.J. 308, 333-34
(2005)).

[State v. Weaver, ___ N.J. ___, ___ (2014)
(slip op. at 35-36).]

Like Weaver, this "is a classic case of several errors,

none of which may have independently required a reversal and new

trial, but which in combination dictate a new trial." Id. at

47. Here, as in Weaver, the error involves a constitutional

right, and reversal is required unless we can "conclude that the

cumulative error was harmless beyond a reasonable doubt." Id.

at 48; see Chapman v. California, 386 U.S. 18, 24, 87 S. Ct.

824, 828, 17 L. Ed. 2d 705, 710-11 (1965).

Reversal of a conviction based on the prosecutor's conduct

is appropriate only if that conduct was "'so egregious that it

deprived [the] defendant of a fair trial.'" State v. DiFrisco,

137 N.J. 434, 474 (1994) (quoting State v. Pennington, 119 N.J.

547, 565 (1990)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949,

133 L. Ed. 2d 873 (1996). Stated differently, reversal is

warranted when the prosecutor's conduct "substantially

prejudice[s] the defendant's fundamental right to have a jury

fairly evaluate the merits of his or her defense." State v.

Harris, 181 N.J. 391, 495 (2004).

7 A-4887-11T1
 Our courts have previously reversed convictions based on

the cumulative impact of a prosecutor's misconduct. See, e.g.,

State v. Frost, 158 N.J. 76, 87 (1999); State v. Hinds, 278 N.J.

Super. 1, 19 (App. Div. 1994), rev'd on other grounds, 143 N.J.

540 (1996). Long ago, the United States Supreme Court concluded

that a new trial is required where the prosecutor's misconduct

"was pronounced and persistent, with a probable cumulative

effect upon the jury which cannot be disregarded as

inconsequential." Berger, supra, 295 U.S. at 89, 55 S. Ct. at

633, 79 L. Ed. at 1321.

Even when the evidence is "overwhelming," strong evidence

of guilt can "never be a justifiable basis for depriving a

defendant of his or her entitlement to a constitutionally

guaranteed right to a fair trial." Frost, supra, 158 N.J. at

87; accord State v. Smith, 212 N.J. 365, 404 (2012) (quoting

Frost). Moreover, in a case such as this where the jury has to

choose which of two versions of an event to credit, "it simply

cannot be said that the evidence is overwhelming." Frost,

supra, 158 N.J. at 87.

Some particularized or specific rules have been recognized.

In Berger, the United States Supreme Court explained:

It is fair to say that the average jury, in
a greater or less degree, has confidence
that these obligations, which so plainly
rest upon the prosecuting attorney, will be

8 A-4887-11T1
 faithfully observed. Consequently, improper
suggestions, insinuations and, especially,
assertions of personal knowledge are apt to
carry much weight against the accused when
they should properly carry none.

[295 U.S. at 88, 55 S. Ct. at 633, 79 L. Ed.
at 1321].

Our Supreme Court has disapproved of any expression of

personal or official opinion or belief that a jury could

understand as based on something other than the evidence,

including a belief in the defendant's guilt "unless [the

prosecutor] makes it perfectly plain that his belief is based

solely on the evidence that has been introduced at the trial."

State v. Thornton, 38 N.J. 380, 398 (1962). The Court reasoned,

"that in the minds of jurors such statements may add the weight

of the prosecutor's official and personal influence and

knowledge to the probative force of the evidence

adduced . . . ." Ibid. For that reason, the Court concluded

that such statements "creat[e] the possibility that the jurors

consciously or unconsciously might adopt the prosecutor's view

without applying their own independent judgment to the

evidence." Ibid.

Other specific forms of advocacy inconsistent with a

prosecutor's duty have been expressly disapproved. Focusing on

disapproved conduct in this case, prosecutors generally may not

vouch for or bolster a State's witness, Frost, supra, 158 N.J.

9 A-4887-11T1
at 87; interfere with the jury's right to make a credibility

determination by improperly impugning the credibility of a

defendant's version of the facts, id. at 88-89; "comment on

facts not shown or reasonably inferable from the evidence in the

case," Farrell, supra, 61 N.J. at 102; or contend that the

police have no motive to lie or face special consequences if

they do, State v. R.B., 183 N.J. 308, 331-32 (2005); Frost,

supra, 158 N.J. at 85.

For ease of exposition, we address the conduct and

principles relevant to the defendant's claims of misconduct

separately and in the order in which the prosecutor took each

action at trial.

B.

A prosecutor's opening statement should be limited to what

the prosecutor "will prove" and "not anticipate" the

prosecutor's summation. State v. Ernst, 32 N.J. 567, 577

(1960). Defendant's core objection to the prosecutor's opening

statement is that the prosecutor declared him guilty of the two

attempted murders with which he was charged. The prosecutor did

that twice — graphically with the last screen of the PowerPoint

presentation accompanying his opening and orally in the final

sentence of his opening.

10 A-4887-11T1
 The PowerPoint's twenty-first and final screen contains a

photograph showing defendant's face and neck, which is displayed

with a bright red border. It also includes text, printed in the

same color and density, "Defendant GUILTY OF: ATTEMPTED MURDER."

The words "Defendant" and "GUILTY OF:" appear on separate lines

to the right of defendant's photograph, and "ATTEMPTED MURDER"

appears below the photograph in much larger typeface.

In overruling defense counsel's objection to the

PowerPoint, the judge explained, "There's nothing specifically

prejudicial in the presentation. . . . [T]his is, merely in my

view, advocacy and the method by which Mr. Herring is presenting

his opening statement."

At the conclusion of the oral portion of his opening, the

prosecutor declared defendant guilty of attempted murder a

second time. He said, "Defendant is guilty of the attempted

murder of a man he stabbed five times and a man [whose]

intestines he tore out."2 Defense counsel did not object,

perhaps because his objection to the PowerPoint was overruled.

2
Sean testified that defendant stabbed him five times, but he
explained that he sustained four wounds and that one stab did
not penetrate at all. Michael testified that his intestines
were "hanging out of [him]," but he did not testify that his
intestines were injured, and, as previously noted, there was no
testimony from a medical professional. Michael also testified
that none of his "organs were hit," but he also said a "slice
across [his] stomach" required surgery.

11 A-4887-11T1
 Our courts have not yet addressed the use of PowerPoint

presentations during opening statements or summations in

criminal trials in a published opinion. Other courts have,

however, considered the matter.

The Nevada Supreme Court has concluded that a PowerPoint,

"as an advocate's tool, is not inherently good or bad" and that

"its propriety depends on content and application." Watters v.

State, 313 P.3d 243, 247 (Nev. 2013). The Court further

determined that a PowerPoint accompanying an opening is

permissible if "the content is consistent with the scope and

purpose of opening statements and does not put inadmissible

evidence or improper argument before the jury." Ibid.

We fully agree that the content, not the medium, is

important. That view is consistent with the approach our

Supreme Court has taken with respect to other technological

advances used in connection with trial court proceedings. See,

e.g., State v. Miller, 205 N.J. 109, 122 (2011) (directing that

in "responding to a request to review testimony, the trial

court's focus should be on the proper controls and limits needed

to ensure a fair proceeding, not the medium used to create a

record").

Faced with a pre-presentation challenge to use of a

PowerPoint in an opening, a court should apply the law governing

12 A-4887-11T1
opening statements. In some respects, use of PowerPoints has

potential to advance the interests of fairness in opening

statements because the court may direct removal of prejudicial

material before a prosecutor displays a slide to the jury. That

opportunity should not be lost.

Watters involved the prosecutor's display of a PowerPoint

slide in opening quite similar to the final slide in this

opening. The Court considered "whether the State's use of a

PowerPoint during opening statement that includes a slide of the

defendant's booking photo with the word 'GUILTY' superimposed

across it constitutes improper advocacy and undermines the

presumption of innocence essential to a fair trial." Watters,

supra, 313 P.3d at 245. The Court concluded that it did and

reversed the defendant's conviction. Id. at 249.

In Watters, the Court reasoned that the declaration of

defendant's guilt displayed by the prosecutor was an

impermissible expression of the prosecutor's personal opinion on

defendant's guilt at least as, if not more, effective in

undermining the presumption of innocence as a prosecutor's oral

proclamation of defendant's guilt in opening. Id. at 248.

The Court rejected the State's suggestion that declaring

the defendant guilty in opening is just a "different way[] of

saying" that the prosecutor will be asking the jury to find

13 A-4887-11T1
defendant guilty. Ibid. In the Nevada Supreme Court's view, a

declaration of the defendant's guilt, unlike an indication that

the State will ask the jurors to find the defendant guilty,

expresses the prosecutor's opinion. Ibid.

For several reasons, we agree that the difference is more

than semantic. A prosecutor's declaration of a defendant's

guilt, at best, implies that it is the prosecutor's opinion.

Our Supreme Court suggested that a prosecutor may state such a

belief if he or she makes it "perfectly plain" that the belief

"is based solely on the evidence that has been introduced at

trial." Thornton, supra, 38 N.J. at 398. But that cannot be

made "perfectly plain" in opening statements when no evidence

has been presented.

Our Supreme Court has consistently condemned conduct that

invades the exclusive province of the jury to resolve factual

disputes, assess credibility and decide whether the State's

evidence establishes guilt. State v. McLean, 205 N.J. 438, 463

(2011) (barring expert and lay opinion testimony on ultimate

issues, which are the province of the jury); State v. Denofa,

187 N.J. 24, 43 (2006) (declaring resolution of factual disputes

about territorial jurisdiction, an element of a crime, to be

within the province of the jury not the court); State v. Frisby,

174 N.J. 583, 595 (2002) (noting that expert opinion on a

14 A-4887-11T1
witness' credibility encroaches upon the province of the jury);

State v. Biegenwald, 106 N.J. 13, 44 (1987) (noting that a

judge's comments on the evidence "must be designed to avoid

unduly influencing or otherwise invading the province of the

jury"); see also State v. Bradshaw, 195 N.J. 493, 510 (2008)

(directing that "[a] prosecutor should neither argue facts that

are not in the record, nor expressly or implicitly vouch for the

credibility of the victim"); State v. Feaster, 156 N.J. 1, 81

(1998) (explaining that "[b]ecause it is exclusively within the

province of the jury to find fact and evaluate witness

credibility, a trial court may not vouch for the credibility of

a witness").

It is difficult to conclude that a prosecutor's declaration

of the defendant's guilt before the first witness is sworn would

not have invaded the province of the jurors. It is quite

similar to an investigating officer's giving expert or lay

opinion testimony on the ultimate issue. Moreover, such a

declaration in opening has the capacity to predispose the jurors

to take the prosecutor's view of the evidence "without applying

their own independent judgment." Thornton, supra, 38 N.J. at

398.

In Watters, the Court relied, in part, on a decision of the

United States Supreme Court, which we also find persuasive,

15 A-4887-11T1
albeit not controlling, Arizona v. Washington, 434 U.S. 497, 98

S. Ct. 824, 54 L. Ed. 2d 717 (1977). In that case, the Court

considered the propriety of a defense counsel's prejudicial

opening that led to a declaration of a mistrial. Id. at 511-13,

98 S. Ct. at 833-34, 54 L. Ed. 2d at 731-33. Relying on a case

involving prejudicial pre-trial publicity, the Court noted that

"[a]n improper opening statement unquestionably tends to

frustrate the public interest in having a just judgment reached

by an impartial tribunal" and to a greater degree than exposure

of one juror because "the entire panel may be tainted." Id. at

512, 98 S. Ct. at 834, 54 L. Ed. 2d at 732. The Court described

the harm flowing from defense counsel's improper opening in that

case as likely capable of preventing the jurors from "'act[ing]

with the independence and freedom on the part of each juror

requisite to a fair trial of the issue between the parties.'"

Ibid. (quoting Simmons v. United States, 142 U.S. 148, 155, 12

S. Ct. 171, 171, 35 L. Ed. 968, 968 (1891)). Threats to and

interference with the independence of the jury is the harm that

our courts have identified as inherent in conduct that invades

the province of the jury.

There is a difference between invasion of the province of a

jury occasioned by inadmissible opinion expressed by a

testifying witness and a prosecutor's declaration of a

16 A-4887-11T1
defendant's guilt in an opening to the jury. The difference is

that a jury generally is given clear direction on the fact that

an opening statement is not evidence. Importantly, in Arizona

v. Washington, the Court did not rule out the use of a curative

instruction as an alternative to a mistrial, as a remedial

measure for an improper opening. Indeed, the Court recognized

that prejudice from an improper opening may be curable in some

circumstances. 434 U.S. at 512-13, 98 S. Ct. at 834, 54 L. Ed.

2d at 732-33.

There is another problem presented by a prosecutor's

declaration of a defendant's guilt of the crime charged in the

State's opening. Such a declaration delivers a message in

conflict with the State's obligation to convince the jury of

defendant's guilt by proof of each element of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.

Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979). It does that by

suggesting the decision has been made. It is more akin to a

directive than advocacy, and it has the capacity to leave the

jury with a lessened sense of its weighty responsibility as the

sole judge of the facts and credibility.

In this case the elements of the crime the State was

required to prove included the absence of self-defense. State

v. Kelly, 97 N.J. 178, 200 (1984). That determination is fact

17 A-4887-11T1
sensitive and, in this case, largely based on credibility

determinations exclusively in the province of the jury.

We recognize the deference owed to a judge's discretion in

matters such as the content of opening statements and use of

visual aids. See, e.g., State v. Tilgham, 385 N.J. Super. 45,

53-58 (App. Div.), certif. granted limited to sentence and

summarily remanded, 188 N.J. 269 (2006). But the question

whether it is permissible for a prosecutor to display a slide

containing defendant's picture and text declaring him guilty of

the crime charged in an opening statement involves, at least in

this case, an application of the law governing opening

statements to undisputed facts — the content of the PowerPoint.

It is, therefore, a matter on which we owe no deference to the

trial judge's determination. State v. Gamble, 218 N.J. 412, 425

(2014). And, we hold a display and oral declaration of

defendant's guilt in an opening statement is an egregious

interference with defendant's right to a fair trial. Such an

interference is highly likely to "substantially prejudice[] the

defendant's fundamental right to have a jury fairly evaluate the

merits of" his defense. Harris, supra, 181 N.J. at 495.

Egregious misconduct may or may not be sufficient to raise

a reasonable doubt about the convictions, depending on the

efficacy of the action taken by the judge to eradicate the

18 A-4887-11T1
apparent prejudice. See, e.g., Dolphy v. State, 707 S.E.2d 56,

57-58 (Ga. 2011) (where the trial court sustained the defense

objection to PowerPoint slides declaring "Defendant's Story Is a

Lie" and asserting that "People Lie When They Are Guilty" and

gave an "immediate corrective action, ordering that the slides

be taken down" and an adequate curative instruction); cf. State

v. Sucharew, 66 P.3d 59, 64 (Ariz. Ct. App. 2003) (finding no

abuse of discretion in allowing a prosecutor to use a PowerPoint

that consisted of pictures provided in discovery and later

admitted into evidence at trial and descriptive text echoing the

prosecutor's oral statements in opening to which there was no

objection); but cf. In the matter of Personal Restraint of

Glasmann, 286 P.3d 673, 709 (Wash. 2012) (reversing convictions

based on the prosecutor's use of a PowerPoint in summation that

included a "mug shot" of the defendant with accompanying text

declaring him guilty on the ground that "the misconduct was so

flagrant and ill intentioned that an instruction would not have

cured the prejudice").

In this case, the only curative instruction did not

adequately address the prejudice. As noted, the judge overruled

defense counsel's objection to use of the PowerPoint in opening

and gave no specific instruction to the jurors on how they might

19 A-4887-11T1
consider the slide in issue, or for that matter any of the other

twenty slides.

The court did instruct the jury during the prosecutor's

opening, but that instruction followed a different objection.

The first sentence of the prosecutor's oral opening was: "Good

afternoon. If we had been outside [the liquor store/bar] on a

Tuesday night, just about [ten] o'clock, we would have seen that

man try to kill two people." Defense counsel objected to the

prosecutor speaking about what "we would have seen," but the

judge directed the prosecutor to continue.

Defense counsel objected a second time when the prosecutor

said, "Defendant stabbed Sean five times. He might have kept

going." The judge immediately directed the jury that an opening

statement "is not evidence" and continued:

Ladies and gentlemen, this is not
evidence. [O]pening statements are what the
lawyers are telling you they intend to
prove.

All right. You're not to speculate as
to what a [d]efendant might or might not be
doing. You have to ultimately, base your
determination on what the evidence is. The
opening statement, again, is not evidence.
It's only what the State intends to prove in
the case.

That instruction is not sufficiently pointed to allow us to

conclude that the jurors understood it to refer to the displayed

and oral declarations of defendant's guilt. Nor are we willing

20 A-4887-11T1
to assume that conduct had no impact on the trial because the

jury found defendant not guilty of attempted murder. The jury

also had to reject defendant's claim of self-defense to find him

guilty of the lesser-included crimes, and the prosecutor's

opening declarations of guilt were prejudicial to its

consideration of that defense.

We need not decide if the opening statement and PowerPoint

were, in themselves, sufficiently prejudicial to require a new

trial because there was additional conduct inconsistent with the

prosecutor's obligation to try the case fairly.

C.

We turn to consider what can only be described as the

prosecutor's antic during the testimony of the State's first

witness, Sean Burns. During defense counsel's cross-examination

of Sean, the prosecutor climbed into the jury box. When the

prosecutor engaged in that bizarre behavior, defendant was

assisting his attorney by operating a device used to replay

segments of the recording of Sean Burns' statement to the

police. Defense counsel was using segments of that recording to

point out inconsistencies between Sean's testimony and his out-

of-court statements. For reasons not clear on this record, the

device was on the prosecutor's table. Defendant, with the

judge's prior approval, was seated there.

21 A-4887-11T1
 "For the record," the prosecutor said: "Mr. Rivera is

actually set up [at] the State's table using [a] laptop computer

hooked onto the projector, using the microphone from the witness

stand in order to play the sections, and I believe Mr. Rivera is

actually doing that." With that introduction, he advised the

judge, "The State is trying to find somewhere to be. So I think

just so it's clear on the record."

Indicative of the lack of context of a statement about the

clarity of the record, the judge asked, "What's clear?" The

prosecutor said, where Sean Burns "was looking."

The prosecutor apparently found somewhere else to be for

some time. He did not get into the jury box until cross and

redirect were completed. He did that during defense counsel's

re-cross. Defense counsel asked Sean whether he had told an

officer that he thought defendant was "a sissy." And after

that, defense counsel asked his client to set up the video.

The judge addressed the prosecutor as follows: "Mr.

Herring, can you please come out of the jury box? I don't want

you that close to the jury." As defendant attempted to set up

the video, the judge called the attorneys to sidebar, but he

spoke to them off the record.

22 A-4887-11T1
 Thereafter, defendant's lawyer told his client that they

would play the video later. The prosecutor called his next

witness.

The following day defense moved for a mistrial based on the

prosecutor's untoward incursion into the jury box. Defense

counsel noted that he had not seen the prosecutor get into the

jury box but saw him climbing out of it when the judge addressed

him. At oral argument in this court, the State confirmed that

there is no entrance to the jury box from the area of the

courtroom where counsel tables are located.

During his argument on this motion for a mistrial in the

trial court, defense counsel acknowledged that he did not know

why the prosecutor climbed in but asserted that it was "highly

inappropriate." He suggested that the prosecutor could have

been "trying to engender [sic] himself to the jury" or "trying

to give an indication that he was afraid of [defense counsel's]

client." Defense counsel noted, as the judge had implied at the

time of the incident, that there were other places the

prosecutor could have gone. Defense counsel suggested that the

action invaded the province of the jury.

There is no question that the prosecutor invaded the

"space" reserved for the jury. In defense counsel's opinion,

the conduct was so unheard of and so improper as to warrant a

23 A-4887-11T1
mistrial. He indicated that it was the "craziest" thing he had

ever seen done.

The prosecutor noted that he was just looking for a place

to stand and write. He acknowledged that it was "probably not

the best place for [him] to stand." He did not, however, offer

any other explanation beyond the need for a place to stand and

write, which he said he could do inside the jury box.

The judge asked defense counsel to identify the prejudice,

but defense counsel could not point to anything more specific.

Although the judge recognized the impropriety of the

prosecutor's action, he concluded that his prompt response and

defense counsel's inability to identify any specific prejudice

precluded a mistrial. The judge gave the jury no additional

instruction on the point.

It is difficult to identify the prejudice with any

precision, but the prosecutor's action was, at best, a

distracting antic inconsistent with the seriousness of the

prosecutor's obligation to do justice and undoubtedly a

distraction to the jurors. The fact that the prosecutor made a

"record" in advance, suggests a plan. Although one cannot

discern what the individual jurors actually inferred from the

behavior, we cannot rule out the likelihood that one or more of

24 A-4887-11T1
them would have inferred what defense counsel suggested — fear

of his client.

The conduct could have easily led one or more jurors to

infer what the prosecutor allowed to be implied — that defendant

was too dangerous or untrustworthy to be near. There is no

question that the judge's prompt order directing the prosecutor

to move clearly indicated that what the prosecutor did was

wrong. It did not, however, address the potential prejudice at

all. Thus, we conclude that this antic added to the prejudice

engendered by the opening statement.

D.

Defendant's third assertion of prosecutorial misconduct is

based on the prosecutor's cross-examination of defendant, which

disclosed that defendant had a prior conviction "for resisting

arrest by force." Defendant had two prior convictions for

crimes of the third degree. One of them was for theft of

movable property in 2004, for which he received a sentence of

two years' probation. The other was for resisting arrest in

2006, N.J.S.A. 2C:29-2, for which he received a sentence of five

years' probation, with credit for time served pending

conviction.

Defendant's judgment of conviction for resisting stated

that it was for third-degree resisting in violation of "N.J.S.A.

25 A-4887-11T1
2C:29-2."3 N.J.S.A. 2C:29-2 provides two distinct bases for

elevating the grade of resisting from a crime of the fourth to a

crime of the third degree. N.J.S.A. 2C:29-2a(3)(a)-(b).

Pursuant to paragraph (a), it is a third-degree crime if the

person "use[d] or threaten[ed] to use physical force or violence

against the law enforcement officer or another." Pursuant to

paragraph (b), the crime is elevated if the person used "any

other means to create a substantial risk of causing physical

injury to the public servant or another."

Quite obviously, one can create a substantial risk of

physical injury by means other than force. Because defendant's

judgment did not specify which paragraph applied to him, it did

not provide any basis for the prosecutor to ask defendant about

resisting "by force."

In addition to the lack of a factual basis for the

question, the prosecutor's reference to the crime underlying the

conviction violated a ruling made by the judge at a hearing

outside the presence of the jury on the admissibility of

defendant's prior conviction to impeach his credibility.

N.J.R.E. 104; N.J.R.E. 609. At the conclusion of that hearing,

the judge granted the prosecutor's motion to use defendant's

3
That judgment is not included in the record on appeal, but it
was discussed on the record at trial.

26 A-4887-11T1
prior convictions to impeach defendant. But the judge also

granted defense counsel's motion for sanitization of defendant's

convictions — that is a ruling precluding reference to the

underlying crimes in accordance with State v. Brunson, 132 N.J.

377, 380 (1993).

The judge's ruling under Brunson was not ambiguous.

Clarifying the scope of defendant's request, he asked defense

counsel whether he wanted the jury told that defendant "was

convicted of two separate third-degree crimes." Defense counsel

confirmed the judge's understanding and added, "and sentenced to

probation." The judge indicated that the prosecutor could use

the "conviction and the sentence and the date of the conviction"

for the jury to consider "as bearing on your credibility" but

could not use the convictions to argue defendant's

"predisposition to commit a crime."

At that point, the prosecutor asked if he could mention

that defendant was on probation when he committed the crime

underlying his second prior conviction. The judge said,

"Certainly, the dates are admissible and the length of probation

is admissible and the degree of the crime is admissible."

If there were any room for confusion about the ruling on

the prosecutor's part, Brunson forecloses it. In Brunson, the

Court held

27 A-4887-11T1
 that in those cases in which a testifying
defendant previously has been convicted of a
crime that is the same or similar to the
offense charged, the State may introduce
evidence of the defendant's prior conviction
limited to the degree of the crime and the
date of the offense but excluding any
evidence of the specific crime of which
defendant was convicted. That method of
impeachment will insure that a prior
offender does not appear to the jury as a
citizen of unassailable veracity and
simultaneously will protect a defendant
against the risk of impermissible use by the
jury of prior-conviction evidence.

[132 N.J. at 391-92.]

The Court elaborated:

To impeach the credibility of a
testifying defendant, the State may
introduce into evidence only the number,
degree, and date of the defendant's prior
similar convictions. When a defendant has
multiple prior convictions, some of which
are similar to the charged offense and some
of which are dissimilar, the State may
introduce evidence only of the date and
degree of crime of all of the defendant's
prior convictions, but cannot specify the
nature of the offenses. Alternatively, the
State may introduce without limitation
evidence of only the dissimilar
convictions. . . .

[132 N.J. at 394.]

In requiring the sanitization of all prior convictions

presented by the prosecutor, even when only one of them is for a

crime "similar" to the one at issue in the trial, the Supreme

Court explained that its purpose was "to avoid the speculation

28 A-4887-11T1
that inevitably would occur if evidence were introduced to prove

the theft conviction and the convictions of the unidentified

crimes." Id. at 393.

Defense counsel was the first to violate the judge's order

and Brunson's rule precluding reference to any crime underlying

a prior conviction where one is similar. During his direct

examination of his client, the lawyer referred to defendant's

first conviction being a conviction for theft. The State did

not object to the reference or seek the judge's guidance on how

to proceed. Instead, the next day, during his cross-examination

of defendant and without seeking leave, the prosecutor posed the

offending question. He asked defendant, "In March of 2006, you

were convicted of resisting arrest by force. Right?" (emphasis

added). Defendant responded: "I don't know by force. I know it

was a resisting arrest, yes."

Defense counsel asked for a sidebar. Referencing the

judge's ruling on Brunson, he admitted that he had

"inadvertently brought out the fact that there was a theft."

The judge said, "I did sanitize it."

Defense counsel then pointed out that resisting arrest and

the crimes at issue were crimes involving violence, and the

judge again observed that the prosecutor had said "Force."

Defense counsel argued that only a mistrial could cure the

29 A-4887-11T1
prejudice given his client's claim of self-defense and the

prosecutor's disregard of the judge's ruling.

The judge called on the prosecutor for a response, and he

said: "[I] apologize if I misunderstood the [c]ourt's ruling. I

believe the [c]ourt sanitized everything except the charge, the

level of degree, the date of conviction."

The judge recessed and returned to rule as follows:

Despite my [o]rder, the [p]rosecutor
revealed in his question to the jury the
[d]efendant was convicted of a resisting
arrest and inaccurate word by "force."

What I intend to do is to tell the jury
that question was inaccurate and improper
and that I will instruct the jury that
they're not to conclude the fact that the
[d]efendant committed a crime, any crime,
that he's more likely to have committed the
crime charged here simply because he
committed a crime on another occasion. And
the jury has a right to consider whether a
person who has previously failed to comply
with society's rules and demonstrated
through criminal convictions would be more
likely to lie on the witness stand than a
person who was never convicted of any crime.

The judge's characterization of the prosecutor's use of the

phrase "by force" as "inaccurate and improper" was well-

warranted. It was inaccurate because, as noted above, the

judgment did not indicate that defendant resisted an arrest by

force and the State had no evidence other than the judgment. It

was "improper" because of the judge's unambiguous ruling

30 A-4887-11T1
sanitizing defendant's convictions and the rule announced in

Brunson.

Nevertheless, the prosecutor said, "I did not understand

that to be the [c]ourt's ruling." He then read from his own

notes, which included the names of the crime but not the phrase

by force.

The judge asked the prosecutor, "If I grant the application

to sanitize the conviction, what was I doing if you can bring

out the nature of the conviction?" Instead of answering the

judge's question, the prosecutor pointed to defense counsel's

reference to theft on direct examination of his client. He said

he had concluded that defense counsel had, "either for strategic

or tactical reasons[,] overlooked the second nature of the

conviction [sic4]. As a result, I stomped onto it." (emphasis

added). This is another instance of egregious misconduct.

The judge denied a mistrial concluding that a curative

instruction would eradicate the prejudice. When the jury

returned and defendant resumed his seat in the witness box, the

judge gave this instruction:

All right. Ladies and gentlemen,
before we broke, the [p]rosecutor was asking
the witness questions, and he was asking the

4
Presumably, the prosecutor meant to say the nature of the
second conviction.

31 A-4887-11T1
witness questions about two prior
convictions. The [p]rosecutor's questions
of this witness were not only improper, but
they were inaccurate.

All right? Now, you can use evidence,
ladies and gentlemen, evidence of a crime in
determining the credibility or believability
of the [d]efendant's testimony. In the
State of New Jersey there are four degrees
of crimes: First, second, third and fourth.
First degree being the most serious, fourth
degree being the least serious.

In this case, the [p]rosecutor, and I
think even [d]efense [c]ounsel elicited that
this [d]efendant had been convicted in the
past of two third-degree crimes.

Now, you cannot conclude, ladies and
gentlemen, that the [d]efendant committed
the crime charged in this case or is more
likely to have committed the crime charged
in this case simply because he committed a
crime on another occasion. You, as the
jury, have a right to consider whether a
person who has been previously — who has
previously failed to comply with society's
rules as demonstrated through a criminal
conviction would have been more likely to
ignore the oath requiring truthfulness on
the witness stand than a person who's never
been convicted of any crime.

You can consider in determining this
issue the nature and degree of the prior
conviction and when they occurred. Our law
permits a conviction to be received in
evidence only for the purpose of affecting
the credibility of the [d]efendant and not
for any other purpose.

So if you infer from the [p]rosecutor's
question that this [d]efendant is more
likely to have committed this offense merely
because he was convicted of another crime,

32 A-4887-11T1
 you are not to make that inference. Do you
understand that?

Thank you. Let's go on.

Because the cumulative impact of the prosecutor's conduct

requires reversal, there is no reason to address defendant's

claim of error in the denial of a mistrial.5 With respect to

cumulative misconduct, the question is whether the judge's

curative instruction was adequate.

This curative instruction was "firm" and "accomplished

without delay" as it should be where evidence of a defendant's

propensity for conduct similar to the conduct charged is

admitted. State v. Vallejo, 198 N.J. 122, 134-35 (2009). The

problem with this curative instruction is that the judge was not

sufficiently specific to give "clear" guidance. Ibid. The

Supreme "Court has consistently stressed the importance of

immediacy and specificity when trial judges provide curative

instructions to alleviate potential prejudice to a defendant

5
"The decision to grant or deny a mistrial is entrusted to the
sound discretion of the trial court" and subject to deferential
review. State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied,
528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). It is
an extraordinary remedy and not employed where there is "an
appropriate alternative course of action." State v. Allah, 170
N.J. 269, 281 (2002). It is worth noting that one of the
Supreme Court's reasons requiring sanitization of similar
convictions was its determination that the inherent prejudice
was "unlikely to be cured by a limiting instruction." Brunson,
supra, 132 N.J. at 391.

33 A-4887-11T1
from inadmissible evidence that has seeped into a trial." Id.

at 135 (emphasis added); see id. at 135-36 (citing and

discussing the cases). What was required in this circumstance

was an instruction explaining precisely the permitted and

prohibited uses of the defendant's prior convictions with

reference to resisting and force. See State v. Marrero, 148

N.J. 469, 495 (1997) (discussing the required instruction where

other crimes evidence is deemed admissible for a limited purpose

pursuant to N.J.R.E. 404(b)).

In this case, the judge did not tell the jury he was

talking about the prosecutor's reference to a conviction for

resisting arrest by force, which defendant had admitted, in

part, in response to the prosecutor's improper question.

Moreover, the judge did not direct the jury that it could not

give any consideration or weight to the prosecutor's

characterization of defendant's conduct as resisting arrest or

as involving "force" for any purpose or in deciding any question

in the case.

"Because the jury instruction was inadequate, we have no

alternative but to assume that the jurors" used the information

as evidence of defendant's propensity for criminal use of force

— a highly prejudicial consequence in this case involving a

claim of self-defense. Vallejo, supra, 198 N.J. at 137. To be

34 A-4887-11T1
clear, if not concise, the problem with the instruction is that

the judge did not tell the jurors not to consider, in any way,

the crime underlying defendant's conviction as stated by the

prosecutor — resisting by force. Moreover, having told the

jurors that what the prosecutor said about that crime was

inaccurate, the judge's instruction left them to speculate about

what defendant did to warrant that conviction, a type of

prejudice the Court recognized in Brunson.

Because defense counsel had a role in the error and because

the prosecutor seemed to believe that defense counsel's

erroneous reference to theft gave him a right to "stomp on it,"

we pause to stress that the prosecutor was wrong. In Brunson,

the Court indicated that "[a] defendant may choose to waive the

protection afforded by" the Court's rule of sanitization. 132

N.J. at 392. We do not understand the Court's reference to

waiver as assigning the prosecutor any authority to decide

whether a defendant has waived that protection. The judge has

the discretion and obligation to apply Brunson so as "to exclude

evidence the prejudicial effect of which seriously compromises a

defendant's right to a fair trial." 132 N.J. at 400 (Handler,

J., concurring). It is not assigned to the prosecutor. Even if

it were, under Brunson disclosure of similar crimes is not one

35 A-4887-11T1
of the options available to the prosecutor. This instance of

misconduct adds to the prejudice.

E.

The prosecutor further added to the cumulative impact of

his misconduct in summation. It is improper for a prosecutor to

express his personal opinion on the veracity of any witness.

State v. Marshall, 123 N.J. 1, 154 (1991). But, referring to

Michael Burns, the prosecutor declared, "[T]he reality is he's

not lying." The prosecutor also said, "[t]he defendant is lying

to you." Arguably, the assertion about Michael was sufficiently

tied to the evidence, but the more prejudicial assertion about

defendant lying was not supported by the evidence the prosecutor

referenced — blood on the door frame. As we understand the

testimony, the blood was never tested and, for that reason that

evidence did not support the prosecutor's claim that defendant

was lying to the jury.

The prosecutor also made improper use of evidence admitted

for the limited purpose of explaining why the officers took

certain steps in the investigation. He used the officer's

testimony to bolster the credibility of Michael Burns. Text on

two of the PowerPoint slides used in opening and summation makes

the same use of the officers' testimony by repeating what

Michael told them.

36 A-4887-11T1
 In addition, the PowerPoint the prosecutor used in

summations included statements about the law of self-defense

that were so oversimplified as to be misleading. Worse, those

oversimplifications provided appealingly easy "take aways," as

those schooled in PowerPoint presentations aptly put it.

The first four of the five final slides of the PowerPoint

used in summation were as follows: the first, a definition of

attempted murder with "GUILTY" superimposed in typeface that

obscures the words; the second, a slide with a caption asserting

"CANNOT BRING A KNIFE TO A FIST FIGHT" and with text purportedly

reciting the law on the use of deadly force that is largely

obscured by superimposed text in a red box that advises "NO

SELF-DEFENSE TO USE DEADLY FORCE"; the third, a slide with a

caption asserting "CANNOT KILL AS FIRST CHOICE," with text

largely obscured by superimposed text in a red box that repeats

"NO SELF-DEFENSE TO USE DEADLY FORCE"; and a slide with boxes of

text that cannot be read because they are obscured by one

superimposed word – "GUILTY" - in typeface that is large enough

to essentially fill the slide.

Without question, the oversimplifications were prejudicial

to a claim of self-defense by a defendant who claimed to have

taken his work knife from his pocket to defend against what he

37 A-4887-11T1
claimed he thought was an imminent and life-threatening attack

by the Burns brothers.

Finally, returning to his initial error in his opening, the

prosecutor closed his summation by saying: "The [d]efendant is

guilty of trying to kill Sean and Michael Burns. Hold him

responsible for what he did." The final slide in the summation-

PowerPoint is the same as the final slide in the opening —

defendant's photograph and text declaring "Defendant GUILTY OF:

ATTEMPTED MURDER."

We recognize that the judge instructed the jury on law and

gave an appropriate instruction directing that what he said

about the law was controlling. In addition, the judge directed

the jurors to rely on their recollection of the evidence, not

the summations of counsel. But the sheer quantity and variety

of highly prejudicial remarks, visual displays and a courtroom

antic, give us reason to have serious doubt about the jurors'

capacity to follow those instructions. See State v. Manley, 54

N.J. 259, 270 (1969) (discussing courts' need to rely on jurors'

capacity to follow instructions); but cf. State v. Winter, 96

N.J. 640, 649 (1984) (noting that "[t]he record lends no support

to the suggestion that the jurors were unable to comply with the

court's instruction"); State v. Catlow, 206 N.J. Super. 186, 193

(App. Div. 1985) (noting that the record revealed "no reason to

38 A-4887-11T1
believe that the jury was unable to follow the court's sharp and

complete curative instruction"), certif. denied, 103 N.J. 465

(1986) (quoted in Vallejo, supra, 198 N.J. at 135).

F.

Despite the judge's efforts, the cumulative impact of the

prosecutor's misconduct leaves us with significant doubt that

defendant received a fair trial. Accordingly, we reverse his

convictions and remand for further proceedings.

39 A-4887-11T1