State v. T.J.M. (072419)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. T.J.M. (A-76-12) (072419)

Argued September 8, 2014 -- Decided January 13, 2015

LaVECCHIA, J., writing for a unanimous Court.

In this appeal as of right, the Court considers four events during defendant’s trial that were perceived by a
dissenting member of the Appellate Division as having the cumulative effect of rendering defendant’s trial unfair.

At the time of the events that led to the charges in this case, defendant lived with his girlfriend, who was
the mother of Chloe,1 the victim. According to Chloe, defendant first sexually abused her when she was
approximately eight years old. Chloe recalled several instances of abuse, which occurred alternatively in the
family’s home or in defendant’s van over a roughly four-year period. The trial testimony revealed that during the
years immediately afterward, Chloe performed poorly in school and had run-ins with the law, resulting in spending
time in juvenile detention centers. Eventually, Chloe told her mother about the abuse and identified defendant as the
abuser. Chloe subsequently provided a statement to detectives, who arrested defendant.

Defendant was charged with two counts of second-degree sexual assault, one count of first-degree
aggravated sexual assault, and one count of second-degree endangering the welfare of a child. At a pretrial hearing,
the trial court determined that defendant’s six-year-old conviction for resisting arrest – the result of a guilty plea –
would be admissible to impeach him. The court instructed counsel that the prosecutor would be permitted to ask
whether defendant had “been previously convicted of a resisting charge that arose out of a DWI stop.” In addition,
the court clarified that defense counsel would be limited in any cross-examination regarding Chloe’s involvement
with the juvenile justice system.

Just prior to closing arguments, the prosecutor stated on the record that Chloe intended to be in the
courtroom during summations. At the beginning of defense counsel’s summation, Chloe walked into the courtroom
accompanied by a representative of the prosecutor’s office, and she remained in the courtroom through the end of
the prosecutor’s summation. Defense counsel began his closing argument by referring to Chloe as a “troubled
young lady,” and he later referenced Chloe’s probation history. During the State’s summation, the prosecutor said
that Chloe had testified “in front of her grandparents, uncles, [and] godfather.” The courtroom audience to which
the prosecutor referred was not information of record. The prosecutor also asked the jury, “[d]oes it surprise any of
you that [Chloe], given her history of just a few years earlier, would end up in the juvenile system? Is that a real
shocker?” Once the prosecutor finished his closing statement, defense counsel objected to Chloe’s entrance during
his summation, but did not request or receive a ruling on that issue. Instead, he acknowledged that Chloe had a right
to be there and moved on to his objection to the prosecutor’s identification of persons who were present in the
courtroom when Chloe testified.

Defense counsel also objected to the prosecutor asking the jurors whether they were “surprised” that Chloe
was involved in the juvenile system. In response, the prosecutor noted that defense counsel had led off his closing
argument by referring to Chloe as a “troubled young lady.” Following those arguments and prior to charging the
jury on the law, the court instructed the jury regarding the prosecutor’s remarks, stating that the jury’s recollection
of the evidence governs, not counsels’ comments. The jury found defendant guilty of two counts of second-degree
sexual assault and one count of second-degree endangering the welfare of a child, and acquitted defendant of
aggravated sexual assault. Defendant appealed, arguing that several prosecutorial and trial court errors deprived him
of his right to a fair trial.

1
The Court uses pseudonyms to protect the non-defendant parties’ identities.
1
 A majority of an Appellate Division panel affirmed in an unpublished opinion. Although the majority
identified several prosecutorial improprieties, no issue convinced the majority that defendant’s conviction ought to
be reversed. One panel member disagreed and filed a dissenting opinion, determining that cumulative error by the
prosecutor and trial judge deprived defendant of his right to a fair trial. The dissenting judge focused on the use of
defendant’s prior conviction for impeachment purposes; the timing of Chloe’s entrance into the courtroom; the
prosecutor’s reference to Chloe’s involvement in the juvenile justice system; and, the prosecutor’s comment that
Chloe testified in the presence of certain family members. In this appeal as of right, the parties are limited to the
issues raised by the dissent. Rule 2:2-1(a)(2).

HELD: The Court finds no prosecutorial or trial court errors, apart from the prosecutor’s comment on the presence
of certain people in front of whom Chloe testified, which was adequately addressed by the trial court’s appropriate
and curing instruction. The points raised by the dissent and defendant have been considered by virtue of this appeal
of right, and the Court holds that they do not merit disrupting the jury’s verdict.

1. The issue of Chloe’s entrance into the courtroom during defense counsel’s summation and whether that
constituted prosecutorial misconduct has no traction. No objection was clearly raised on the record, defendant failed
to advance any evidence at the time to support the claim, and defendant never filed a motion for a mistrial based on
the incident. The Court rejects the notion that it should presume bad intent by the prosecution and that it should
fault the trial court for not performing a timely investigation. If orchestrated misconduct truly had been suspected
by the defense, which was in the best position to assess the timeline of circumstances then unfolding in this trial,
then that was the time to insist on exploring any issues concerning persons believed to be involved. Instead, defense
counsel receded from asserting the issue at trial, and only on appeal does the argument rise again, phoenix-like. The
Court rejects in its entirety the assertion of nefarious intent on the part of this particular prosecutor. (pp. 14-16)

2. In New Jersey, a witness generally may be impeached with evidence of a prior conviction. N.J.R.E. 609. A
person who has lived contrary to society’s rules and laws by committing crimes should not be able to shield his
credibility from the jury and present himself as a law-abiding individual. A defendant plainly experiences prejudice
from such evidence, but prior convictions are normally admissible for impeachment purposes, subject to the court’s
discretion. This Court cannot say that the trial court’s assessment of the probative value of the conviction for
impeachment purposes was so off the mark as to have rendered defendant’s trial unfair. Additionally, the trial judge
properly instructed the jury on the limited purpose to which the resisting-arrest conviction could be put. No error
occurred as a result of the impeachment use of defendant’s prior conviction for resisting arrest. (pp. 17-20)

3. The Court next addresses the arguments that the prosecutor engaged in improper remarks during his summation
to the jury and thereby unfairly prejudiced defendant’s trial. The first remark – referencing Chloe’s involvement in
the juvenile justice system – was a response, which did not exceed fair bounds, to defense counsel’s exploration of
Chloe’s juvenile justice system involvement during cross-examination. That remark was, in fact, “based on the
evidence in the case and the reasonable inferences from that evidence,” and “afford[s] no ground for reversal.” State
v. Bradshaw, 195 N.J. 493, 510 (2008). The second remark – that Chloe “testified in front of her grandparents,
uncles, godfather” – did not suggest wrongdoing on the part of defendant and although the remark could be
considered an attempt to bolster Chloe’s credibility, the court instructed the jury clearly on the fact that their
recollection of the evidence, not counselors’ comments on the evidence, is controlling. The trial court’s action
ameliorated the prejudicial effect of the prosecutor’s errant comment about matters not in the record. (pp. 20-23)

4. Where the aggregation of legal errors renders a trial unfair, a new trial is required. Here, however, not only were
none of the asserted errors prejudicial, the Court has not found any errors apart from the prosecutor’s comment on
the presence of certain people in front of whom Chloe testified, which was adequately addressed by the trial court’s
appropriate and curing instruction. The points raised by the dissent and defendant have been considered by virtue of
this appeal of right, and the Court holds that they do not merit disrupting the jury’s verdict. (pp. 23-24)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE RABNER; JUSTICES PATTERSON, FERNANDEZ-VINA, and SOLOMON;
and JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion; JUSTICE ALBIN did
not participate.

2
 SUPREME COURT OF NEW JERSEY
A-76 September Term 2012
072419

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

T.J.M.,

Defendant-Appellant.

Argued September 8, 2014 – Decided January 13, 2015

On appeal from the Superior Court, Appellate
Division.

Alan L. Zegas argued the cause for appellant
(Mr. Zegas, attorney; Mr. Zegas and Terel L.
Klein, on the briefs).

David A. Malfitano, Assistant Prosecutor,
argued the cause for respondent (John L.
Molinelli, Bergen County Prosecutor,
attorney).

Alexander R. Shalom argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey (American Civil Liberties
Union of New Jersey Foundation, attorneys).

Carol M. Henderson, Assistant Attorney
General, argued the cause for Attorney
General of New Jersey (John J. Hoffman,
Acting Attorney General, attorney).

JUSTICE LaVECCHIA delivered the opinion of the Court.

Defendant, T.J.M, was convicted of two counts of second-

degree sexual assault and one count of second-degree endangering

1
the welfare of a child based on events involving his

girlfriend’s daughter. The Appellate Division affirmed

defendant’s conviction and sentence, but a dissent brings

several issues before this Court in an appeal as of right. We

now affirm defendant’s conviction.

I.

The following summary provides background to the issues

raised by the dissent. The facts summarized were presented

during defendant’s trial.

At the time of the events that led to the charges,

defendant lived with his girlfriend, who was the mother of

Chloe,2 the victim. According to Chloe, defendant, who was deaf

but used a combination of hearing aids, sign language, and lip

reading to understand and communicate with others, first

sexually abused her when she was approximately eight years old.

In her testimony, Chloe recalled several instances of abuse,

which occurred alternately in the family’s home or in

defendant’s van over a roughly four-year period.

The trial testimony revealed that defendant and Chloe’s

mother eventually split up and defendant moved out of the home.

During the years immediately afterward, Chloe performed poorly

in school and had run-ins with the law, resulting in her

2 We use pseudonyms to protect the non-defendant parties’
identities.
2
spending time in juvenile detention centers. One instance of

detention occurred when Chloe was fifteen years old, after she

violated the terms of her probation. While speaking with a

social worker at the detention center, Chloe disclosed for the

first time that she had been sexually abused, but she did not

disclose her abuser’s identity or the nature of the abuse.

Eventually, Chloe told her mother about the abuse and identified

defendant as the abuser. Chloe subsequently provided a

statement to detectives, who arrested defendant.

Relevant to this appeal, defendant was charged with two

counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b); one

count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-

2(a)(1); and one count of second-degree endangering the welfare

of a child, N.J.S.A. 2C:24-4(a).

At a pretrial hearing, the trial court determined that

defendant’s six-year-old conviction for resisting arrest -- the

result of a guilty plea -– would be admissible to impeach him.

That conviction stemmed from a vehicle stop on suspicion of

driving while intoxicated (DWI). When making its ruling, the

court instructed counsel that the prosecutor would be permitted

to ask whether defendant had “been previously convicted of a

resisting charge that arose out of a DWI stop.” In a related

pre-trial ruling, the court also clarified that defense counsel

3
would be limited in any cross-examination regarding Chloe’s

involvement with the juvenile justice system.

During the trial, the State presented testimony from Chloe,

the counselor to whom Chloe had first made the sexual-abuse

allegation, and an expert witness. Chloe recounted particular

aspects of the abuse, including specific acts, where on her body

they were performed, and the context and locations in which the

abuse occurred. Defendant presented character witnesses and

testified through an interpreter. Defendant denied abusing

Chloe and refuted specifics regarding Chloe’s recitation of the

incidents.

Just prior to closing arguments, the prosecutor stated on

the record that Chloe intended to be in the courtroom during

summations, but that she could not stay for any afternoon

proceedings. After hearing from both parties regarding whether

their respective summations should straddle a break for lunch,

the trial court determined that both sides would give their

closing arguments prior to the lunch break. Immediately after

that colloquy, the court brought the jury into the courtroom,

gave a brief instruction, and turned the floor over to defense

counsel.

At the beginning of defense counsel’s summation, Chloe

walked into the courtroom accompanied by a representative of the

prosecutor’s office. She remained in the courtroom through the

4
end of the prosecutor’s summation. Defense counsel began his

closing argument by referring to Chloe as a “troubled young

lady,” and he later referenced Chloe’s probation history.

During the State’s summation, the prosecutor said that

Chloe had not wanted to be in court to relive the events, but

had nevertheless testified “in front of her grandparents,

uncles, [and] godfather.” The courtroom audience to which the

prosecutor referred was not information of record. The

prosecutor also discussed Chloe’s involvement with the juvenile

justice system and asked the jury, “[d]oes it surprise any of

you that [Chloe], given her history of just a few years earlier,

would end up in the juvenile system? Is that a real shocker?”

Once the prosecutor finished his closing statement, defense

counsel objected to Chloe’s entrance during his summation, and

the following colloquy ensued:

[DEFENSE COUNSEL]: I want the record to also
reflect it was after I started my opening
argument that the victim came into the
courtroom with some representative I believe
from the Prosecutor’s Office and sat down,
after defense counsel got started doing the
closing argument that they paraded the alleged
victim into the courtroom.

THE COURT: You’re making a point that they
waited specifically, [counsel]?

[DEFENSE COUNSEL]: I believe so, Judge.

[PROSECUTOR]: Judge, first of all I don’t
know what that objection is. She certainly
has every right to come into the courtroom and

5
 be seated and she was not in the least bit
distracting and there’s no other objection.
Certainly I’m sure he’s not objecting to her
coming into the courtroom. I don’t know what
that objection is. She’s allowed to be here.
His whole family has been here.

[DEFENSE COUNSEL]: She is allowed to be here.
Let’s address the godfather and the uncle
being present when she testified.

Thus, defense counsel did not request or receive a ruling on the

issue raised about Chloe’s entrance into the courtroom.

Instead, he acknowledged that Chloe had a right to be there and

moved on to his objection to the prosecutor’s identification of

persons who were present in the courtroom when Chloe testified.

Defense counsel also objected to the prosecutor asking the

jurors whether they were “surprised” that Chloe was involved in

the juvenile system. In response, the prosecutor noted that

defense counsel had led off his closing argument by referring to

Chloe as a “troubled young lady.”

Following those arguments and prior to charging the jury on

the law, the court instructed the jury regarding the

prosecutor’s remarks, stating that the jury’s recollection of

the evidence governs, not counsels’ comments.

The jury found defendant guilty of two counts of second-

degree sexual assault, N.J.S.A. 2C:14-2(b), and one count of

second-degree endangering the welfare of a child, N.J.S.A.

2C:24-4(a), and acquitted defendant of aggravated sexual

6
assault, N.J.S.A. 2C:14-2(a)(1). Following defendant’s

conviction and sentencing, he appealed, arguing that several

prosecutorial and trial errors deprived him of his right to a

fair trial.

A majority of an Appellate Division panel affirmed in an

unpublished opinion. Although the majority identified several

prosecutorial improprieties, no issue convinced the majority

that defendant’s conviction ought to be reversed.

One panel member disagreed and filed a dissenting opinion,

determining that cumulative error by the prosecutor and trial

judge deprived defendant of his right to a fair trial. The

dissent addressed the identified errors in light of the trial’s

evidentiary posture, highlighting the paucity of the State’s

evidence and that both sides’ likelihood of success hinged on

credibility determinations.

Specifically, the dissent characterized the prior-

conviction evidence as unrelated and dissimilar to the offense

charged, concluding that admitting that evidence was an abuse of

discretion where the case turned largely on the credibility of

the victim and defendant. The dissent also stated that the

prosecutor, in his summation, had improperly bolstered Chloe’s

credibility and suggested that defendant’s alleged victimization

of Chloe had led her on a path of unlawful conduct.

7
 Finally, the dissenting judge determined that the State had

deliberately and improperly timed Chloe’s entrance into the

courtroom to coincide with defense counsel’s summation in order

to distract from the defense’s closing argument and evoke

sympathy for Chloe. On this basis alone, the dissent considered

the reversal of defendant’s conviction necessary. The judge

stated:

Although my colleagues conclude that we should
assume this event was accidental because there
was no “competent evidence” that it was
intentional, I would state the question in the
opposite fashion and assume it was intentional
because there was no evidence that Chloe
simply wandered into the courtroom at that
particular moment. Indeed, . . . the State
concedes that Chloe was brought into the
courtroom by a representative of the
prosecutor's office. When defense counsel
objected, the assistant prosecutor did not
assert that Chloe's entrance was merely a
coincidence nor did he deny it was
choreographed. Instead, the assistant
prosecutor correctly -- but irrelevantly --
argued that Chloe had a right to be present in
the courtroom. That was certainly true, but
the prosecution did not have the right to
distract the jury in this manner, which, as
the majority notes, was not a first for this
assistant prosecutor. See [State v. T.J.M.,
No. A-2040-10 (App. Div. Mar. 5, 2013) (slip
op. at 28) (citing State v. Mosby, No. A-3233-
08 (App. Div. Apr. 19, 2010))].

My colleagues are unwilling to assume
that this stunt was orchestrated by the
assistant prosecutor. For the reasons I have
mentioned -- the assistant prosecutor’s prior
bad act in Mosby, the fact that Chloe was
escorted in by a representative of the
prosecutor’s office, and the assistant

8
 prosecutor’s “non-denial denial” when defense
counsel objected -- I am not willing to assume
Chloe’s entrance was an innocent or
coincidental occurrence. Naiveté has its
limits. The circumstances can lead only to
the conclusion that the State was responsible
and, in a case as close as this, it was enough
-- even on its own -- to require our conclusion
that the bounds of advocacy were exceeded and
warrant correction through the ordering of a
new trial.

[(Footnotes omitted).]

Defendant now appeals to this Court as of right.

II.

As noted, the dissent focused on four events during

defendant’s trial that were perceived as having the cumulative

effect of rendering defendant’s trial unfair. Since this is an

appeal as of right, the parties are limited to the issues raised

by the dissent, R. 2:2-1(a)(2), which we repeat here in a

distilled form: (1) permitting the State to use defendant’s

six-year-old conviction for fourth-degree resisting arrest for

impeachment purposes; (2) the timing of Chloe’s entrance into

the courtroom during defense counsel’s summation; (3) the

prosecutor’s comment in summation that referred to Chloe’s life

after the offenses and her involvement in the juvenile justice

system; and (4) the second remark by the prosecutor in closing,

that Chloe testified in the presence of certain family members,

which the dissent viewed as an attempt to bolster her

credibility.

9
 We now address, in turn, the parties’ arguments, which are

based on the dissent’s treatment of those issues.

A.

Before this Court, defendant emphasizes the prejudice

caused by the prosecutor “parading” Chloe into the courtroom and

disrupting the jury’s attention during defense counsel’s

summation. Defendant asserts that the disruption was

intentional. Defendant argues that Chloe’s entrance should not

be regarded as innocent because of the asserted involvement of

the same prosecutor in another trial involving the questionable

timing of a witness’s appearance in the courtroom (as discussed

in an unpublished Appellate Division opinion). Rather,

defendant contends that the State had an obligation to come

forward with countervailing proof that the entrance was not

intentional. The dissent was persuaded by that argument and

defendant presses the same argument before this Court.

Defendant also argues that the use of the six-year-old

conviction for resisting arrest was of limited impeachment value

and that, in a closely poised case such as this one where much

depended on credibility, the court erred in its exercise of

discretion by allowing use of the prior conviction. Defendant

asserts that the conviction provides little substantive

assistance in the assessment of defendant’s credibility while

causing great prejudice.

10
 Finally, defendant claims that the two comments made by the

prosecutor in summation -- and identified as prejudicial by the

dissent -- produced an unfair result, and together exemplify a

course of conduct that stretched beyond the fair use of the

record evidence.

B.

According to the State, the timing of Chloe’s entrance was

not, and should not be presumed to be, misconduct by the

prosecution team. The State notes that defendant’s trial

counsel did not assert an objection at the time that would have

allowed the issue to be explored on the record. Further, the

State highlights defense counsel’s concession during the post-

summation colloquy that Chloe had the right to be present in the

courtroom, and defense counsel’s subsequent abandonment of any

argument on the issue.

As for the other issues raised by the dissent and by

defendant on appeal to this Court, the State contends that the

standard for allowing prior convictions to be used for

impeachment purposes was not contravened by the trial court’s

exercise of discretion. Finally, the State asserts that the two

summation arguments were not capable of bringing about an unjust

result.

C.

11
 We granted amicus curiae status in this matter to the New

Jersey Attorney General and the American Civil Liberties Union

of New Jersey (ACLU).

Addressing the key issue argued by defendant and of concern

to the dissent, the Attorney General presents a factually based

argument, assembled from the transcript, which maps the events

that led to Chloe’s entrance into the courtroom after closing

arguments had commenced. According to the Attorney General’s

presentation, the timing of Chloe’s entrance was not nefariously

coordinated. Rather, it was the natural result of two factors:

(1) the distance Chloe had to travel to the courtroom from the

courthouse building where she was waiting for summations to

begin; and (2) the immediate resumption of on-the-record

proceedings and defense counsel’s summation following the charge

conference where the prosecutor stated that Chloe intended to be

present for closing arguments.

The Attorney General also argues, consistent with the

State’s arguments, that use of the resisting-arrest conviction

did not contravene the standard for admission of prior

convictions for impeachment purposes. Moreover, the Attorney

General argues that the prosecutor’s summation comment about

Chloe’s juvenile justice history merely responded to the

defense’s characterization of Chloe as “troubled.” As for the

prosecutor’s reference to family members identified as being

12
present when Chloe testified -- a matter not of record -- the

Attorney General asserts that such a comment cannot comprise

harmful error where the trial court properly instructed the jury

that an attorney’s argument does not constitute evidence.

Last, the Attorney General urges us to refrain from using

the phrase “prosecutorial misconduct” except in cases where

ethical rules are violated, arguing that the indiscriminate use

of that phrase to describe any prosecutorial misstep demeans the

professional standing of New Jersey prosecutors. Further, the

Attorney General asks this Court to remove the stigma associated

with prosecutorial mistakes by making clear that “errors” and

“mistakes” should not be termed “misconduct.”

The ACLU urges this Court to establish a registry of court-

identified prosecutorial misconduct to enable future trial

courts and defense counsel to track repetitive instances of

prosecutorial error and avoid having individual courts miss the

larger picture of rogue prosecutors who fail to adhere to proper

standards of conduct. The ACLU asserts that the absence of such

a tracking system, and the general practice in opinions of not

identifying prosecutors found to have made errors, allows

“recidivist” prosecutors to operate with impunity and endangers

public confidence in the criminal justice system. Thus, the

ACLU contends, this Court should employ its disciplinary,

13
rulemaking, and supervisory authority to create a prosecutorial-

error registry.

III.

We begin with the issue of Chloe’s entrance into the

courtroom during defense counsel’s summation and whether that

constituted prosecutorial misconduct because the timing

assertedly was orchestrated to disrupt the jury’s attention from

the defense and to evoke sympathy for the victim. This issue

has no traction for several reasons.

First, no objection was clearly raised on the record at the

time the trial court could have explored the issue with trial

counsel. Defense counsel raised a tepid complaint about the

disruption of his summation, but when the trial court expressly

asked defense counsel whether he was asserting that the State

had intentionally caused the timing of Chloe’s entrance in the

courtroom, defense counsel dropped the topic and began to argue

another issue instead. Defendant failed to advance any evidence

at the time to support the claim and never filed a motion for a

mistrial based on the incident.

Second, the defense also argues, as it did before the

Appellate Division, that we should presume bad intent by the

prosecution and should fault the trial court for not performing

a timely investigation. The dissent’s adoption of that extreme

approach lifted this defense issue and argument to an appeal as

14
of right. We reject the notion that such intent should be

presumed. We will not engage in such a presumption,

particularly in circumstances such as here where the parties to

the event dropped the issue when it could have been explored.

If orchestrated misconduct truly had been suspected by the

defense, which was in the best position to assess the timeline

of circumstances then unfolding in this trial, then that was the

time to insist on exploring any issues concerning persons

believed to be involved. Instead, defense counsel receded from

asserting the issue at trial, and only on appeal does the

argument rise again, phoenix-like.

Finally, in addition to declining to accept that

presumption, we reject the dissent’s assertion, adopted by

defendant on appeal, that the circumstances here “can lead only

to the conclusion that the State was responsible.” Indeed, we

note that a careful review of the record reveals no support for

this defense claim. Both the State and the Attorney General

affirmatively represented to this Court that a mere timing

glitch in the unfolding of trial events the morning of May 18,

2010 led to Chloe entering the courtroom after defense counsel

had begun his closing statement. In particular, the Attorney

General’s brief sifted through the transcript, pointing out that

the State informed the court and defense counsel that Chloe was

being notified so she could come to the courtroom to hear the

15
closing statements. Further, the Attorney General noted that

Chloe had to walk from another part of the courthouse complex to

be present for summations. In sum, the record reveals that the

court determined, in consultation with counsel, to proceed

immediately from the charge conference to summations. And, in

forging ahead in order to complete summations prior to the lunch

break, all parties were on notice that Chloe would be returning

to the courtroom for the closing arguments.

Following that timeline of the proceedings, it is clear

that it took a short while for Chloe to traverse the distance

from one courthouse-complex building to another where the trial

was being conducted. Moreover, Chloe’s entrance along with a

member of the prosecutor’s unit is unremarkable. We disagree

with the assertion that nefarious intent on the part of this

particular prosecutor is a viable argument;3 that argument is

factually unsound, and we reject it in its entirety.

3 We base our determination of this matter on the record of this
case as established by the transcript, not on inferences to be
derived from unpublished opinions of this state’s courts. To
the extent that the ACLU invites us to consider such an
unpublished opinion as evidence supporting prosecutorial
misconduct, we decline to do so, as that “evidence” is not part
of the trial record.
We likewise decline the ACLU’s invitation to create a registry
of prosecutors who have repeatedly been admonished for engaging
in prosecutorial error, as the Attorney General would have it
denominated. Nothing prevents others from publishing views on
such issues as decided in published and unpublished opinions of
the appellate courts of this state. See, e.g., Alexander Shalom
& George C. Thomas III, ACLU-NJ, Trial and Error: A
16
 IV.

Turning to the next issue, we address the trial court’s

admission of defendant’s conviction for resisting arrest.

In New Jersey, a witness generally may be impeached with

evidence of a prior conviction. See N.J.R.E. 609 (“For the

purpose of affecting the credibility of any witness, the

witness’[s] conviction of a crime shall be admitted unless

excluded by the judge as remote or for other causes.”);4 State v.

Sands, 76 N.J. 127, 147 (1978) (holding that prior conviction

shall be admissible evidence for impeachment purposes unless

danger of undue prejudice substantially outweighs probative

value). The underlying rationale to that evidential rule is the

belief that a person who has lived contrary to society’s rules

and laws by committing crimes should not be able to shield his

credibility from the jury and present himself as a law-abiding

individual. See State v. Sinclair, 57 N.J. 56, 64 (1970). A

defendant plainly experiences prejudice from such evidence, but

prior convictions are normally admissible for impeachment

purposes, subject to the court’s discretion. See State v.

Comprehensive Study of Prosecutorial Conduct in New Jersey
(2012), available at https://www.aclu-
nj.org/files/3213/4815/6942/ACLU-NJ_Pros_Cond_BW.pdf. Further,
to the extent it is ever necessary, the attorney disciplinary
process is public and its decisions and judgments are a matter
of public record.

4 This rule was amended in 2014. See infra note 4.
17
Harris, 209 N.J. 431, 442 (2012) (citing State v. Hamilton, 193

N.J. 255, 256 (2008); State v. Whitehead, 104 N.J. 353, 358

(1986)). Thus, we review such admissibility determinations

under an abuse of discretion standard. See State v. Buda, 195

N.J. 278, 294 (2008).

In this matter, the dissent disagreed with the admission of

defendant’s six-year-old resisting-arrest conviction. While

noting the deferential standard of review, which prevents an

appellate court from deciding such evidential matters as if

sitting as the trial judge, the dissent believed that the trial

court abused its discretion here. The dissent maintained that

when a case turns on credibility, a trial court should exercise

more heightened concern about the admission of a prior

conviction that only theoretically illuminates an offender’s

credibility. Defendant presently advances those same arguments.

Like the majority of the appellate panel that first

reviewed this appeal, we are not persuaded to substitute our

judgment for that of the trial court on this evidential ruling.

It was for the trial court to assess defendant’s prior

conviction’s probative value in light of its remoteness, and we

cannot say that the trial court erred in that judgment. The

question is not whether we would have made a different

determination in the first instance. Rather, we apply the

normal, deferential standard and conclude that the trial court

18
did not abuse its discretion when it permitted the use of the

prior conviction for impeachment purposes. The conviction was

not stale by the standard in use for assessing remoteness. See

Harris, supra, 209 N.J. at 436, 444-45 (holding two prior

convictions more than ten years old admissible where disorderly-

persons offenses “bridge[d] the gap”).5 And, we cannot say that

the trial court’s assessment of the probative value of the

conviction for impeachment purposes was so off the mark as to

have rendered defendant’s trial unfair. Although the dissent

viewed the conviction as only “theoretically” speaking to

credibility, it is at least as probative of credibility as prior

convictions used in numerous other proceedings. See, e.g.,

State v. Lagares, 247 N.J. Super. 392, 396-97 (App. Div. 1991)

(affirming State’s use of seven-year-old conviction for

possession of marijuana as “clearly hav[ing] a bearing on . . .

credibility”), rev’d on other grounds, 127 N.J. 20 (1992); see

also State v. Hawthorne, 49 N.J. 130, 145 (1967) (Weintraub,

C.J., concurring) (noting the “widespread belief that conviction

for crime has ‘probative value’ with respect to the credibility

of a witness”), overruled on other grounds by Sands, supra, 76

N.J. at 147.

5 In the wake of Harris, supra, this Court adopted amendments to
N.J.R.E. 609 that favor the general admissibility of prior-
conviction evidence that is less than ten years old.
19
 Additionally, we note that the trial judge properly

instructed the jury on the limited purpose to which the

resisting-arrest conviction could be put. In light of this

Court’s consistently held belief that prior-conviction evidence

has probative value for impeachment purposes, as assessed by the

trial court, see Harris, supra, 209 N.J. at 442, the trial

court’s allowance of such evidence here cannot be said to be a

“clear error of judgment,” State v. Brown, 170 N.J. 138, 147

(2001) (citation and internal quotation marks omitted).

We therefore conclude that no error occurred as a result of

the impeachment use of defendant’s prior conviction for

resisting arrest.

V.

We turn last to address the arguments that the prosecutor

engaged in improper remarks during his summation to the jury and

thereby unfairly prejudiced defendant’s trial.

The first offending remark -- “[d]oes it surprise any of

you that [Chloe], given her history of just a few years earlier,

would end up in the juvenile system? Is that a real shocker?” -

- came during a discussion of Chloe’s involvement with the

juvenile justice system. The trial court previously had limited

the extent to which defense counsel could cross-examine Chloe

about her juvenile record; however, questioning on that topic

was not restricted entirely, and the defense did use that tactic

20
when cross-examining her. Pointing to the record, the State

identifies instances where defense counsel (1) elicited the

dates Chloe was on probation, how and when she violated her

probation, when warrants were issued for her arrest, and details

of her stay at juvenile detention centers; and (2) questioned

Chloe regarding her marijuana usage. As the Appellate Division

majority also noted, Chloe testified that she once ran away from

home while on probation because she was “fed up with life.”

Based on the record that was developed, we are compelled to

agree with the argument that the prosecutor’s first remark was a

response, which did not exceed fair bounds, to defense counsel’s

exploration of Chloe’s juvenile justice system involvement

during cross-examination. The comment, however colloquially

phrased, also may be regarded as a legitimate attempt to combat

the reasonable inferences flowing from Chloe’s “fed up with

life” testimonial remark and defense counsel’s characterization

of Chloe as a “troubled young girl.” The prosecutor sought to

make a reasonable connection between her allegation of abuse and

the conduct that brought her into the juvenile justice system.

Further, as the Appellate Division majority noted, “[o]ne could

reasonably infer that [Chloe] was ‘fed up’ and wanted to run

away from home in part because she had been sexually abused.”

That is also a fair inference from this record. Thus, we

conclude that the first allegedly offending remark was, in fact,

21
“based on the evidence in the case and the reasonable inferences

from that evidence,” and “afford[s] no ground for reversal.”

State v. Bradshaw, 195 N.J. 493, 510 (2008) (citation and

internal quotation marks omitted).

The second remark -- that Chloe “testified in front of her

grandparents, uncles, godfather” -- was analogized by the

dissent to the improper summation that occurred in State v.

Farrell, 61 N.J. 99, 102 (1972). However, the reliance on

Farrell is misplaced because the circumstances of that case are

far different from the present one. The prosecutor in Farrell

repeatedly stressed in summation that the defendant had caused

four persons, whose presence was not in the record, to be in the

courtroom for the purpose of intimidating a State witness.

Ibid. That concerned this Court when the matter was on review.

We emphasized that the prosecutor not only had bolstered the

witness’s credibility, but also implied that the defendant had

“attempted to obstruct justice.” Id. at 105. We also

identified another comment that implied that “the prosecutor had

personal knowledge of the defendant’s guilt,” id. at 103, and

noted that the trial court had given no curative instructions on

those matters, id. at 107. Thus, in reversing the defendant’s

conviction in Farrell, we were focusing on several errors

connected to the remark, which had the cumulative effect of

bolstering witness credibility.

22
 Here, the prosecutor’s remark, which did not suggest

wrongdoing on the part of defendant, is the lone similarity to

Farrell. Although the remark could be considered an attempt to

bolster Chloe’s credibility, the court instructed the jury

clearly on the fact that their recollection of the evidence, not

counselors’ comments on the evidence, is controlling. We act on

the belief and expectation that jurors will follow the

instructions given them by the court. See State v. Ross, 218

N.J. 130, 152 (2014) (citing State v. Winder, 200 N.J. 231, 256

(2009)). The trial court’s action ameliorated the prejudicial

effect of the prosecutor’s errant comment about matters not in

the record. While it would have been preferable for the court

to have addressed the potential bolstering effect of the comment

expressly, we do not find that to provide a sufficient basis for

reversing defendant’s conviction.

VI.

Finally, we address defendant’s assertion that the

cumulative trial and prosecutorial errors denied his right to a

fair trial.

Where the aggregation of legal errors renders a trial

unfair, a new trial is required. See State v. Wakefield, 190

N.J. 397, 538 (2007). “If a defendant alleges multiple trial

errors, the theory of cumulative error will still not apply

23
where no error was prejudicial and the trial was fair.” State

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

Here, not only were none of the asserted errors

prejudicial, we have not found any errors apart from the

prosecutor’s comment on the presence of certain people in front

of whom Chloe testified, which was adequately addressed by the

trial court’s appropriate and curing instruction. Thus, while

noting the dissenting judge’s concern with the issues on which

he would have reversed this conviction and ordered a new trial,

we conclude that such action is not warranted. The points

raised by the dissent and defendant have been considered by

virtue of this appeal of right, and we hold that they do not

merit disrupting the jury’s verdict.

VII.

The judgment of the Appellate Division is affirmed.

CHIEF JUSTICE RABNER; JUSTICES PATTERSON, FERNANDEZ-VINA,
and SOLOMON; and JUDGE CUFF (temporarily assigned) join in
JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN did not participate.

24
 SUPREME COURT OF NEW JERSEY

NO. A-76 SEPTEMBER TERM 2012
ON APPEAL FROM Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

T.J.M.,

Defendant -Appellant.

DECIDED January 13, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY

CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN ------------------------ ----------------------

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA X

JUSTICE SOLOMON X

JUDGE CUFF (t/a) X
6

1