STATE OF NEW JERSEY VS. DARRYL SMITH (18-11-0995 AND 18-11-0998, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1067-19
STATE OF NEW JERSEY
Plaintiff-Respondent,
v.
DARRYL SMITH,
Defendant-Appellant.
________________________
Submitted October 25, 2021 – Decided November 17, 2021
Before Judges Sabatino and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment Nos. 18-11-0995
and 18-11-0998.
Joseph E. Krakora, Public Defender, attorney for
appellant (Candace Caruthers, Assistant Deputy Public
Defender, of counsel and on the briefs).
Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Catlin A. Davis, Deputy Attorney General,
of counsel and on the brief).
PER CURIAM
Defendant Darryl Smith appeals from judgments of conviction dated
October 9, 2019. Specifically, he challenges denial of his motion for a mistrial
based on statements uttered by a trial witness and various instances of
prosecutorial misconduct during opening and closing statements. We affirm.
The following facts were adduced during defendant's trial for attempted
sexual assault.
On August 29, 2018, defendant was found unconscious in Jersey City.
The responding police officers called for an ambulance and defendant went to
an area hospital. In diagnosing defendant's condition, the hospital staff
determined defendant suffered an accidental drug overdose. Several hours after
entering the hospital, defendant left without being officially discharged by the
hospital.
After he left the hospital, defendant encountered a woman, D.C.,1 on a
street near the hospital. Defendant tackled D.C., held her down, and tried to
spread her legs. During the attack, defendant tore D.C.'s dress and ripped D.C.'s
underwear. While D.C. was screaming and fighting defendant, a man walked
by and attempted to pull defendant off D.C. Defendant resisted until a second
1
We refer to the victim by her initials pursuant to R. 1:38-3(c)(12).
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man helped subdue defendant. After the men pulled defendant off D.C.,
defendant got up and "walked away like nothing ever happened."
D.C., accompanied by the two men, pursued defendant. D.C. followed
defendant, seeking to identify her attacker by taking his photograph. D.C. also
called 9-1-1.2
In response to the 9-1-1 call, the police arrived at the scene and arrested
defendant. Defendant returned to the same hospital because the police believed
defendant to be "under the influence of something." After being cleared by the
hospital's medical staff, defendant was transported to the police station and
charged with second-degree attempted sexual assault on D.C.
In an unrelated incident occurring the day before his attack on D.C.,
defendant admitted to arguing with another woman, S.S., and striking her in the
face while wearing a ring. Defendant's ring left a wound on S.S.'s face, requiring
stitches. Defendant was separately charged with second-degree aggravated
assault and third-degree burglary stemming from the incident involving S.S.
2
The State filed a motion to admit the 9-1-1 call. After a testimonial hearing,
the judge granted the State's motion, allowing admission of the call at trial,
subject to redactions not relevant to this appeal.
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Defendant proceeded to trial on the attempted sexual assault charge
involving D.C. The trial on the charges involving the attack on S.S. awaited the
outcome of the trial on the charge involving defendant's attack on D.C.
D.C. testified at trial. She provided emotional testimony regarding
defendant, telling the jury she was attacked by "this ugly piece of sh**."
Immediately following this remark, the judge instructed a court officer to
remove the jury from the courtroom. When the jury left the courtroom, while
D.C. remained seated at the witness stand, a representative associated with the
victim assistance unit approached D.C. Within earshot of some jury members,
the judge stopped the representative before she could reach D.C. The judge
admonished the victim assistance unit representative and reminded her "[t]his is
not the prosecutor's office" and she must "not to interfere when [the court is] on
the record."
After excusing the jury, the judge sought counsels' advice regarding a
curative instruction. Neither counsel offered any suggestions, leaving the judge
to formulate his own curative instruction.
When the jury returned to the courtroom, the judge issued a curative
instruction regarding D.C.'s outburst. The judge informed the jury the testimony
might get emotional, but the jury must decide defendant's guilt or innocence
based purely on the evidence and the law, not emotions. He emphasized to the
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jury that D.C.'s derogatory comment regarding defendant should not factor into
the jury's final decision, reiterating the jury must focus on the evidence and the
law. Neither counsel lodged any objection after the judge issued this curative
instruction. On the record, the judge noted the jurors understood his instruction
because all fourteen members of the jury shook their heads in assent to the
judge's statements. The judge then declared a lunch recess.
After lunch, defense counsel moved for a mistrial based on D.C.'s
derogatory statement regarding defendant. The judge denied the motion, finding
his prompt curative instruction sufficiently cured any minimal prejudice caused
by D.C.'s statement.
After four days of testimony, counsel presented closing arguments to the
jury. During closing arguments, the prosecutor commented on D.C.'s demeanor
during her 9-1-1 call to the police. Additionally, the prosecutor responded to
defense counsel's challenges to the victim's credibility. Further, defendant
claimed the prosecutor's closing statement belittled defendant's intoxication
defense as an "excuse" for his crime and an effort to obtain a "free pass."
The jury found defendant guilty of attempted sexual assault. After the
guilty verdict, the State extended a plea offer to defendant related to the charges
in the other incident with S.S. On the second-degree aggravated assault charge,
the State proposed reducing the charge to fourth-degree aggravated assault and
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dismissing the remaining third-degree burglary charge. The State agreed to
recommend imposition of an eighteen-month sentence to be served concurrently
with the sentence for attempted sexual assault on D.C.
On October 7, 2019, consistent with the negotiated plea agreement, the
judge sentenced defendant to an eight-year prison term for the attempted sexual
assault on D.C. and a concurrent sentence of eighteen-months for the aggravated
assault on S.S. Additionally, the judge ordered defendant follow the reporting
and registration requirements under Megan's Law, N.J.S.A. 2C:7-1 to -23,
prohibited any contact with the D.C. under Nicole's Law, N.J.S.A. 2C:44-8; and
imposed Parole Supervision for Life, N.J.S.A. 2C:43-6.4.
On appeal defendant raises the following arguments:
POINT I
REVERSAL IS REQUIRED BECAUSE THE COURT
ERRONEOUSLY DENIED A MISTRIAL
FOLLOWING AN EMOTIONAL OUTBURST BY
THE VICTIM CALLING THE DEFENDANT AN
"UGLY PIECE OF SH**" AND AN EMPLOYEE OF
THE VICTIM ASSISTANCE UNIT RUSHING
TOWARD THE WITNESS STAND.
POINT II
RELATED INSTANCES OF PROSECUTORIAL
MISCONDUCT DENIED DEFENDANT A FAIR
TRIAL.
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A. The Prosecutor Impermissibly Argued Throughout
Trial that the Jury Should Convict Defendant so that the
Victim's "Strength" and "Tremendous Courage" in
Confronting Defendant Would Not Be in Vain.
B. The Prosecutor Improperly Denigrated the Defense
by Labeling the Defense of Intoxication as a Mere
"Excuse" and Inaccurately Describing Attempt as a
"Free Pass."
We review a trial court's denial of a motion for a mistrial for abuse of
discretion. State v. Herbert, 457 N.J. Super. 490, 503 (App. Div. 2019) (citing
State v. Winter, 96 N.J. 640, 647 (1984)). We will not disturb a ruling on a
mistrial motion "absent an abuse of discretion that results in a manifest
injustice." State v. Smith, 224 N.J. 36, 47 (2016) (citing State v. Jackson, 211
N.J. 394, 407 (2012)). Whether inadmissible evidence presented to a jury
warrants a mistrial or a cautionary instruction is "peculiarly within the
competence of the trial judge." Winter, 96 N.J. at 646-47.
If there is "an appropriate alternative course of action," denial of a mistrial
is within the trial court's discretion. State v. Allah, 170 N.J. 269, 281 (2002).
Alternative courses of action include a curative instruction, short adjournment
or continuance, or some other remedy that may provide a viable alternative to a
mistrial. Smith, 224 N.J. at 47. "The same deferential standard that applies to
the mistrial-or-no-mistrial decision applies to review of the curative instruction
itself." Herbert, 457 N.J. Super. at 503 (citing Winter, 96 N.J. at 647).
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In deciding a motion for a mistrial, a court should consider the following
factors: (1) "the nature of the inadmissible evidence the jury heard, and its
prejudicial effect"; (2) whether the instruction was issued swiftly and firmly;
and (3) "tolerance for the risk of imperfect compliance" by a jury. Herbert, 457
N.J. Super. at 505-07. In electing to provide a curative instruction rather than
granting a mistrial, judges are to presume a jury is "capable of following a
curative instruction to ignore prejudicial matter." Williams v. James, 113 N.J.
619, 632 (1989).
Defendant argues the judge should have granted his motion for a mistrial
because defendant was denied "due process and a fair trial." He contends D.C.'s
outburst was so prejudicial no curative instruction would suffice.
For the first time on appeal, defendant also asserts the judge's curative
instruction was flawed because the judge failed to instruct the jury to disregard
the actions of the victim assistance unit representative in response to D.C.'s
emotional outburst. He claims the judge admonished the representative while
the jury was in the courtroom and the rebuke allowed the jury to "impermissibly
speculate about what [the representative's] role might be." We reject both
arguments.
The judge gave the following instruction to the jury:
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things happen in life, right? People get emotional,
people do not become emotional. . . . I see it every day.
You're going to need to deal with that in this case. And
you all heard what the charge [was] when you first
walked through the door on Tuesday. Okay? You need
to decide the case – I know it's going to be somewhat
emotional, but you're going to need to do your best to
decide the case based on . . . the evidence and the law.
And even though there's emotion out there, you're going
to need to put the emotion aside. Okay?
....
Someone got emotional, that's fine. But the part about,
you know, calling someone a name, you know, you
can't consider that during deliberations. Okay?
Everyone understands that? Very good.
I'm sure you all can put that aside and judge the case
based just on the evidence and based on the law,
correct? Okay. I have 14 heads shaking, so we'll take
a little bit longer for lunch.
After the lunch recess, and before the jury returned to the courtroom, the
judge provided a detailed recitation of the "tumult" that occurred prior to the
recess in the event "the [A]ppellate [D]ivision is reading the record" in the
future. On the record, with only counsel present in the courtroom, the judge
stated
I think the witness became emotional. . . . I'm
shrugging. I know this is not the video courtroom.
That's not a problem, right? Witnesses become
emotional, we'll deal with that. [The Appellate
Division] may not understand the first part, and I say
this respectfully, with what I was just talking about.
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When I said, why don't we take the jurors out, the jurors
were on their way but in the courtroom.
....
. . . you have a terrific victim-witness assistance, but I
can't have people coming up to the witness who's being
very emotional and then I'm thinking in my mind are
we going to have Michaels[3] type problems, like, is
somebody going to start hugging the witness and the
jurors are looking. And that was the [j]udge's reaction.
Okay?
. . . because there was someone from the prosecutor's
[office] . . . I don't think anybody planned anything.
Something emotional happened and everybody just
reacted. So, I don't think anybody was behaving in bad
faith. . . . so the record's clear, that was more my issue.
Regarding the reaction of the victim assistant unit representative in
response to D.C.'s outburst, the judge continued,
if I didn't put my finger up and say no, you're not a
participant, she would have been up at the witness
[stand]. I don't know what would have happened.
Hopefully nothing.
....
And she did not make it [to the witness stand] – and I'm
not accusing anyone of doing anything nefarious. I
don't think . . . that – not for one minute do I think that
was anyone's intent. There was some emotion and there
was a reaction. I probably would have had the same
reaction. I understand, but no, she didn't make it
3
State v. Michaels, 264 N.J. Super. 579, 615-16 (App. Div. 1993), aff'd on other
grounds, 136 N.J. 299 (1994).
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anywhere near [the witness], but I would dare – but I
had to put my hand up and say no, stop, or whatever I
said.
After the judge made this statement on the record, prior to the jury
returning to the courtroom, defense counsel requested a mistrial based on D.C.'s
outburst on the witness stand. Defendant's attorney argued "it was such a
dramatic event and it certainly raises the possibility of this jury being tainted by
her actions."
In denying the motion, the judge stated:
If someone who believes they're the victim of an
attempted sexual assault gives an angry outburst, do I
understand? Of course I understand. But does my
understanding overcome that there should be a mistrial
or not in this matter? Okay.
She's entitled to feel how she wants. She can be
emotional. I mean, she could sit next to me and I could
tell her, please don't be emotional. I don't think
anybody in the room thinks that's going to work, right,
with somebody . . . who has certain feelings . . . but . .
. I'm not convinced at this point that there's been any
prejudice at this point in time.
I gave an instruction to the jurors. . . . I think I give
mine a little bit less formal than some other judges and
I kind of look at the 14 [jurors] and I say, you hear what
I said? Everybody can do that . . . even though there's
emotion in the courtroom, everybody can base this case
on only the law and the facts and not your emotions?
And the 14 of them shook their heads yes.
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We first consider defendant's claim the curative instruction was deficient
because the judge did not address the actions of the victim assistance unit
representative. However, defendant never raised the issue as part of his mistrial
motion. If a party does not object or raise an issue at the trial level, we review
the matter for plain error. State v. McKinney, 223 N.J. 475, 494 (2015); see R.
2:10–2 ("Any error or omission shall be disregarded by the appellate court
unless it is of such a nature as to have been clearly capable of producing an
unjust result . . . ."). An error will be disregarded unless "a reasonable doubt
has been raised whether the jury came to a result that it otherwise might not have
reached." State v. R.K., 220 N.J. 444, 456 (2015).
We perceive no error let alone plain here. Even if the jury recognized the
victim assistance unit representative was part of the prosecution's team,
defendant failed to articulate how the jury's verdict would have been different
absent the representative's actions. While not directing his jury instructions
specifically to the actions of the victim assistance unit representative, the judge
emphasized the jury's decision must be based solely on the evidence and the law.
We next consider defendant's argument that a mistrial should have been
granted because the curative instruction regarding D.C.'s outburst failed to cure
the resulting prejudice. Here, the judge addressed the applicable factors in
deciding the mistrial motion. D.C.'s outburst was minimized by the judge
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referring to her remarks as improper name calling and advised the jury on several
occasions they were required to render a decision based solely on the evidence
and the law. His instruction was issued swiftly and firmly. See State v. Vallejo,
198 N.J. 122, 134-35 (2009). After issuing the curative instruction, the judge
noted each juror nodded, indicating their assent, when he asked if the jury
understood his instruction regarding D.C.'s outburst. Based on the jurors'
reaction, the judge correctly presumed the jury would follow his instruction.
We are satisfied the judge properly exercised his discretion in denying
defendant's mistrial motion.
Not only do we discern no abuse of discretion in the judge's denial of
defendant's mistrial motion, but we commend the trial judge's handling of the
situation. A judge who finds himself or herself in a situation involving an epithet
uttered by an emotional witness during a trial, and the attendant circumstances
following the utterance of curse words or other invective statements, would be
well-served to follow Judge Mark J. Nelson's actions by addressing the situation
calmly and deliberatively, and immediately issuing prompt instructions to the
jury.
We next consider defendant's arguments regarding instances of
prosecutorial misconduct during closing statements. Defendant advances four
specific instances of misconduct: (1) the prosecutor inappropriately reminded
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the jury about D.C.'s emotional outburst on the witness stand; (2) the prosecutor
impermissibly made an emotional appeal to the jury, stating the jury should
convict defendant so that D.C.'s "strength" and "tremendous courage" would not
be in vain; (3) the prosecutor improperly expressed a personal opinion regarding
D.C.'s character traits, violating the duty to refrain from expressing personal
belief about the truth of the witness's testimony; and (4) the prosecutor
denigrated defense counsel's closing argument by labeling the intoxication
defense as an "excuse" and a "free pass." We disagree any of these statements
by the prosecutor evidenced misconduct warranting a new trial.
Because defense counsel failed to object to the prosecutor's comments as
prejudicial during the course of the trial, we review the issues for plain error.
R.K., 220 N.J. at 456; R. 2:10-2. In addition to demonstrating the prosecutor's
comments constituted error, defendant must demonstrate the possibility of an
injustice flowing from the comments "sufficient to raise a reasonable doubt as
to whether the error led the jury to a result it otherwise might not have reached."
State v. Macon, 57 N.J. 325, 336 (1971).
"Prosecutors are afforded considerable leeway in closing arguments as
long as their comments are reasonably related to the scope of the evidence
presented." State v. Frost, 158 N.J. 76, 82 (1999) (citing State v. Harris, 141
N.J. 525, 559 (1995)). Prosecutors in criminal cases are expected to make
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vigorous and forceful closing arguments to juries. State v. Williams, 244 N.J.
592, 607 (2021) (citing Frost, 158 N.J. at 82). "[A]s long as the prosecutor stays
within the evidence and the legitimate inferences therefrom, [t]here is no error."
Ibid. (second alteration in original) (internal quotation marks and citation
omitted) (quoting State v. McNeil-Thomas, 238 N.J. 256, 275 (2019)).
As a general rule, it "is improper for a prosecutor to express his personal
opinion on the veracity of any witness." State v. Rivera, 437 N.J. Super. 434,
463 (App. Div. 2014) (citing State v. Marshall, 123 N.J. 1, 154 (1991)).
However, not all expressions of opinion are so inherently prejudicial to require
a new trial. If defense counsel fails to object contemporaneously to the
prosecutor's comments, "the reviewing court may infer that counsel did not
consider the remarks to be inappropriate." State v. Vasquez, 265 N.J. Super.
528, 560 (App. Div. 1993) (citing State v. Johnson, 31 N.J. 489, 511 (1960)).
Applying these principles, we discern no plain error in the prosecutor's
statements to the jury during closing argument.
Contrary to defendant's argument, the prosecutor did not refer to D.C.'s
emotional comments on the witness stand during summation. The prosecutor
simply told the jury "[y]ou saw [D.C.] testify yesterday." The prosecutor asked
the jury to remember the harm suffered by D.C. based on her own testimony,
describing defendant's attack, not the emotional outburst on the stand.
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Nor did the prosecutor's comments about D.C.'s courage and strength rise
to the level of plain error. During cross-examination and closing argument,
defense counsel attacked D.C.'s credibility, attempting to cast doubt on various
aspects of her testimony. The prosecutor's statements regarding D.C.'s courage
in following defendant to provide a description to the police and her " strength"
in testifying and confronting defendant at trial were intended to demonstrate
D.C.'s credibility as a witness, not to inflame the jury. Moreover, the
prosecutor's statements did not express a personal belief about D.C.'s strength
and courage. He merely observed D.C. demonstrated strength by confronting
her attacker in providing trial testimony and displayed courage by following her
attacker to identify him to the police.
Even if the prosecutor impermissibly expressed a personal opinion about
D.C.'s courage and strength, the references were too fleeting to constitute plain
error. Where a prosecutor's remarks were "fleeting" and "accompanied by an
appropriate charge by the trial judge instructing . . . that counsel's comments are
not evidence," the remarks do not constitute plain error. State v. Jang, 359 N.J.
Super. 85, 97 (App. Div. 2003).
The prosecutor's characterization of D.C. was fleeting, and the judge
instructed the jury to disregard any perceived bias, passion, prejudice, or
sympathy and to decide the case based solely on evidence. The judge expressly
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stated "[a]rguments, statements, remarks, openings, and summations of counsel
[were] not evidence and must not be treated as evidence." On this record,
defendant failed to proffer any evidence the jury would have reached a different
outcome had the prosecutor had not made these statements during closing
argument.
We next examine defendant's claim the prosecutor's description of the
intoxication defense as an "excuse" and a "free pass" constituted prosecutorial
misconduct. Again, defense counsel did not object when the prosecutor made
these statements during closing argument. Thus, we review the prosecutor's
statements for plain error.
Here, the prosecutor correctly stated the law regarding attempted sexual
assault several times during his closing argument. He told the jury the State has
to prove that "defendant purposely took a substantial step towards the
completion of an act of sexual penetration." In addition, defense counsel
accurately stated the State's burden of proof during closing argument. More
importantly, the judge instructed the jurors they were to follow his instructi ons
and not be guided by any description of the law provided by either counsel.
Defendant's reliance on State v. Rodriguez, 365 N.J. Super. 38 (App. Div.
2003), in support of his argument is misplaced. In Rodriguez, the prosecutor
repeatedly characterized the defendant's insanity defense as an excuse to avoid
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a conviction for murder. Id. at 49-52. Here, the prosecutor's use of the word
"excuse" on two occasions during closing argument was not as prejudicial or
egregious as the statements by the prosecutor in Rodriguez. We are satisfied the
prosecutor's use of the words "excuse" and "free pass" did not constitute plain
error as there was overwhelming evidence in this case to support the jury's guilty
verdict.
Because we reject each of the errors raised by defendant on appeal, we
conclude there were no cumulative errors entitling defendant to a new trial.
Even where a defendant alleges several trial errors, "the theory of cumulative
error will still not apply where no error was prejudicial and the trial was fair."
State v. Weaver, 219 N.J. 131, 155 (2014).
To the extent not addressed, we determine defendant's remaining
arguments are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
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