State v. Damon Williams (083532) (Camden County & Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. 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
Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. Damon Williams (A-46-19) (083532)
Argued September 29, 2020 -- Decided January 19, 2021
SOLOMON, J., writing for the Court.
In this appeal, the Court considers whether the prosecutor’s comments and use of a
particular PowerPoint slide in her closing at the trial of defendant Damon Williams
amounted to prejudicial error.
In 2014, defendant entered a Bank of America branch. He approached the
window of Maria Cervantes, a bank teller in her early twenties, bent down until the two
were at eye level, and leaned toward the bars above the counter separating tellers from
customers. Defendant then passed Cervantes a note that said, “Please, all the money,
100, 50, 20, 10. Thank you.” Cervantes opened her cash drawer and gave defendant
about $4,600. When she tried to include a pack of $20 bills containing a GPS tracker and
a device that would trigger a silent alarm, defendant instructed her not to. During the
encounter, defendant did not produce a weapon or threaten the use of a weapon, nor did
he verbally threaten violence if Cervantes did not comply with his request. Defendant
then walked out of the bank and another teller triggered the alarm.
The central trial issue was whether defendant committed second-degree robbery --
theft using force or the threat of force, purposely putting Cervantes in fear of immediate
bodily injury -- or third degree theft -- exercising unlawful control over the movable
property of another with purpose to deprive him thereof.
Throughout the trial, the State repeated the theme “actions speak louder than
words.” During her summation, the prosecutor displayed to the jury a PowerPoint slide
with the heading “ACTIONS SPEAK LOUDER THAN WORDS.” The slide contained
a still-shot from the movie The Shining, depicting Jack Nicholson in his role as a violent
psychopath who used an ax to break through a door while attempting to kill his family.
The slide featured the words spoken by Nicholson in the movie as he stuck his head
through the broken door -- “Here’s Johnny!” The prosecutor commented that the
character was “saying some very unthreatening words, ‘Here’s Johnny.’ But if you have
ever seen the movie The Shining, you know how his face gets through that door. So,
again, I just point that out to illustrate. It’s not just the words; it’s what you do before
and what you do after the words that matters. And that’s what makes this a robbery.”
1
After the prosecutor concluded her summation, defense counsel objected to the
photo’s use. During a colloquy, the trial judge offered a curative instruction, but stated,
“If I do that though, I’m underscoring again, the prosecution’s arguments.” Defense
counsel ultimately agreed that “it may be best left alone.” Thus, the court did not give a
curative instruction. The jury convicted defendant of second-degree robbery.
On appeal, defendant argued that the prosecutor’s use of the PowerPoint slide
during summation denied defendant a fair trial. The Appellate Division affirmed the
conviction. The Court granted certification limited to that issue. 241 N.J. 9 (2020).
HELD: The prosecutor’s comments and use of the PowerPoint slide amounted to
prejudicial error.
1. The duty of a prosecutor is as much 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. While prosecutors are expected to make vigorous and forceful closing arguments to
juries, their comments should be reasonably related to the scope of the evidence
presented. References to matters extraneous to the evidence may constitute prosecutorial
misconduct. When a prosecutor’s remarks stray over the line of permissible commentary,
courts must weigh the severity of the misconduct and its prejudicial effect on the
defendant’s right to a fair trial. Courts reverse a conviction only if the prosecutorial
misconduct was so egregious as to deprive defendant of a fair trial. Factors to be
considered in making that decision include: “(1) whether defense counsel made timely
and proper objections to the improper remarks; (2) whether the remarks were withdrawn
promptly; and (3) whether the court ordered the remarks stricken from the record and
instructed the jury to disregard them.” State v. Frost, 158 N.J. 76, 83 (1999). Here, the
State admits it erred in using the PowerPoint image during summation but asserts the
error was not clearly capable of producing an unjust result. (pp. 13-16)
2. The Court reviews in detail four cases in which it considered whether prosecutorial
errors deprived the defendant of their right to a fair trial. In State v. Feaster, 156 N.J. 1(1998); State v. Jackson, 211 N.J. 394 (2012); and State v. McNeil-Thomas, 238 N.J. 256(2019), the Court found the prosecutors’ errors to be harmless after noting such
considerations as the evidence adduced, lack of objection, use of a curative instruction,
and whether the challenged statements were fair comment on the evidence. In Frost, the
Court found the prosecutor’s summation constituted prejudicial prosecutorial misconduct:
there, the prosecutor made a clear misstatement of the law, improperly vouched for a
witness’s credibility, and disparaged defense counsel; despite defense counsel’s
objections, moreover, the court did not strike any of the comments or provide a limiting
instruction. Those cases make clear that, in closing, prosecutors are obliged to confine
their comments to the evidence admitted and reasonable inferences drawn therefrom.
Failing to do so may imply that facts or circumstances exist beyond what has been
presented to the jury and encroach upon a defendant’s right to a fair trial. (pp. 16-22)
2
3. During summation, to convey the supposed threatening nature of defendant’s note,
conduct, and words, the prosecutor displayed the still shot from The Shining while
making the comments noted above. Unlike in the movie scene, no act of physical
violence preceded the handing of the note or followed the handing the money to
defendant. The prosecutor nevertheless asked the jury to infer from the photograph and
the words “Here’s Johnny!” that defendant’s words and “actions” purposefully put
Cervantes in fear of immediate bodily injury. Comments by a prosecutor in closing that
stray beyond the evidence and the reasonable inferences therefrom are inappropriate and
improper. The prosecutor here went far beyond the evidence to draw a parallel between
defendant’s conduct and that of a horror-movie villain. (pp. 23-25)
4. Defense counsel did offer a timely objection, and the trial court suggested that a
curative instruction might highlight the photograph and remarks. Also, the prosecutor’s
comments were neither withdrawn nor stricken from the record. The application of the
Frost factors here does not undermine defendant’s claims. (pp. 25-26)
5. Whether defendant purposely put Cervantes in fear of immediate bodily injury -- thus
supporting a conviction for robbery, not theft -- was a close call here. The prosecutor’s
comments and the extra-evidentiary movie photo made it more likely that the jury would
reject the defense that only a theft occurred. Thus, the prosecutor’s conduct during
summation was clearly capable of having an unfair impact on the jury’s deliberations,
intruded upon defendant’s right to a fair trial, and constituted reversible error. (p. 26)
6. To avoid objection or possible error, the Court encourages counsel to disclose to each
other and the court any visual aids intended to be used during closing argument, but does
not require that practice. Nevertheless, the Court reminds prosecutors that they must
ensure their strategy and commentary fall within the boundaries of permissibly forceful
advocacy. Prosecutors must walk a fine line when making comparisons, whether implicit
or explicit, between a defendant and an individual whom the jury associates with violence
or guilt. The use of a sensational and provocative image in service of such a comparison,
even when purportedly metaphorical, heightens the risk of an improper prejudicial effect
on the jury. Such a risk was borne out here. Visual aids such as PowerPoint
presentations must adhere to the same standards as counsels’ spoken words. Slides may
not be used to put forward impermissible evidence or make improper arguments before
the jury. A PowerPoint may not be used to make an argument visually that could not be
made orally. The PowerPoint here fell short of that standard. (pp. 26-28)
The judgment of the Appellate Division is REVERSED, defendant’s
conviction is VACATED, and the matter is REMANDED for a new trial.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and PIERRE-LOUIS join in JUSTICE SOLOMON’S opinion.
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SUPREME COURT OF NEW JERSEY
A-46 September Term 2019
083532
State of New Jersey,
Plaintiff-Respondent,
v.
Damon Williams, a/k/a
Danen Williams, David Bowman, and
Damon Bailey,
Defendant-Appellant.
On certification to the Superior Court,
Appellate Division .
Argued Decided
September 29, 2020 January 19, 2021
Alison Gifford, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Alison Gifford, of counsel and on the
briefs, and Frank M. Gennaro, Designated Counsel, on
the briefs).
Jason Magid, Special Deputy Attorney General/Acting
Assistant Prosecutor, argued the cause for respondent
(Jill S. Mayer, Acting Camden County Prosecutor,
attorney; Nancy P. Scharff, Special Deputy Attorney
General/Acting Assistant Prosecutor, on the brief).
Alexander Shalom argued the cause for amicus curiae
American Civil Liberties Union of New Jersey
(American Civil Liberties Union of New Jersey
1
Foundation, attorneys; Alexander Shalom, and Jeanne
LoCicero, on the brief).
Carol M. Henderson, Assistant Attorney General,
argued the cause for amicus curiae Attorney General
of New Jersey (Gurbir S. Grewal, Attorney General,
attorney; Carol M. Henderson, of counsel and on the
brief).
JUSTICE SOLOMON delivered the opinion of the Court.
Defendant Damon Williams was charged with robbing a bank. In the
course of the alleged robbery, defendant did not display a weapon or make a
verbal threat. Instead, he passed a note to a young female teller which said,
“Please, all the money, 100, 50, 20, 10. Thank you.” The central issue at trial
was whether defendant committed second-degree robbery -- theft using force
or the threat of force -- or third-degree theft -- exercising unlawful control over
the movable property of another. The jury convicted defendant of robbery.
In this appeal, we consider whether the jury might have reached that
result because the prosecutor showed the jury a PowerPoint presentation in her
closing that contained a still photograph from the movie The Shining and
commented, “if you have ever seen the movie The Shining, you know how his
face gets through that door.” The PowerPoint slide depicted Jack Nicholson in
his role as a violent psychopath who used an ax to break through a door while
attempting to kill his family. The photograph contained the words spoken by
2
Nicholson in the movie scene as he stuck his head through the broken door --
“Here’s Johnny!” The slide also bore the heading “ACTIONS SPEAK
LOUDER THAN WORDS,” a theme used by the State throughout the trial to
suggest to the jury that defendant’s conduct in the moments leading up to and
following defendant’s passing the note to the teller supported a finding of
robbery when viewed in context. The photograph was not previously shown to
the court or defense counsel and had not been used at trial or offered or
admitted into evidence.
We determine that the prosecutor’s comments and use of the PowerPoint
slide amounted to prejudicial error. We therefore reverse the judgment of the
Appellate Division, vacate defendant’s conviction, and remand for a new trial.
I.
The appellate record reveals that in the summer of 2014, defendant
entered a Bank of America branch in Merchantville, Camden County, carrying
a bag and wearing a sweatshirt, dark pants, a New York Giants hat, and aviator
sunglasses; his fingertips were covered by band-aids. As he approached the
window of Maria Cervantes, a bank teller in her early twenties, defendant bent
down until the two were at eye level and leaned toward the bars above the
counter separating tellers from customers. Defendant then passed Cervantes a
note that said, “Please, all the money, 100, 50, 20, 10. Thank you.” Cervantes
3
opened her cash drawer and gave defendant about $4,600. When she tried to
include a pack of $20 bills containing a GPS tracker and a device that would
trigger a silent alarm, defendant instructed her not to. During the encounter,
defendant did not produce a weapon or threaten the use of a weapon, nor did
he verbally threaten violence if Cervantes did not comply with his request.
Defendant then walked out of the bank and another teller, Rachel Cowgill,
triggered the alarm.
Fingerprint evidence lifted from the note handed to Cervantes identified
defendant, and officers arrested him several weeks later. A Camden County
grand jury indicted defendant for one count of second-degree robbery, contrary
to N.J.S.A. 2C:15-1(a)(2).
At trial, during opening statements, the prosecutor said that a theme of
the case would be “actions speak louder than words,” to emphasize that
defendant’s actions amounted to more than “just a mere request for money.”
In response, defense counsel highlighted that defendant did not use a weapon
or force, pointing out that the fundamental question before the jury was
whether defendant “deliberately, consciously, intentionally, purposefully
placed Maria Cervantes in fear of immediate bodily injury.” Thus, the central
4
trial issue was whether defendant committed second-degree robbery1 under
N.J.S.A. 2C:15-1(a)(2) -- theft using force or the threat of force, purposely
putting Cervantes in fear of immediate bodily injury -- or third degree theft2
under N.J.S.A. 2C:20-3(a) -- exercising unlawful control over the “movable
property of another with purpose to deprive him thereof” -- a lesser-included
offense of robbery.
At trial, Cowgill, who was standing less than a foot away from
Cervantes during her encounter with defendant, testified on behalf of the State.
She recounted that defendant wore “heavy dress” during the middle of the
summer, along with a hat “that was pulled down” and sunglasses. According
to Cowgill, defendant, who was over six feet tall, approached Cervantes, who
was about “five two,” when she finished with another customer and crouched
down to “eye level” with her. Cowgill described defendant as “pretty much on
top” of the metal gate separating tellers from customers. Although she did not
1
Second-degree robbery carries an ordinary term of five to ten years’
imprisonment. N.J.S.A. 2C:43-6(a). As a result of defendant’s significant
criminal history, which included eleven convictions as an adult, defendant
qualified as a repeat violent offender under N.J.S.A. 2C:43-7.1(b)(1), or as a
persistent offender under N.J.S.A. 2C:44-3(a), and was therefore eligible for
an extended term sentence of between ten and twenty years for a second-
degree robbery conviction, N.J.S.A. 2C:43-7(a)(3).
2
Pursuant to N.J.S.A. 2C:43-6, a conviction of third-degree theft calls for a
term of imprisonment of between three and five years, or an extended term
sentence of five to ten years, N.J.S.A. 2C:43-7(a)(4).
5
see defendant pass the note to Cervantes, Cowgill observed defendant pointing
to the note, which caused Cervantes to begin shaking visibly. Cowgill testified
further that when Cervantes attempted to include a pack of $20 bills containing
a GPS tracker, defendant forcefully said, “No, leave that there.” Cowgill
stated that she watched defendant walk out of the bank and then looked at
Cervantes, who “started crying and shaking.” Cowgill then yelled for her
manager and triggered the alarm system.
Cervantes testified that upon receiving the note from defendant, she felt
she “had to do what the note said, and was very scared.” She affirmed that
although “[defendant] didn’t display a weapon or attempt to reach for a
weapon” she felt threatened and “was still very scared” because she “didn’t
know what he could have in his pockets.”
Surveillance video footage from the bank showed defendant, dressed in
the clothing described by Cowgill, walking across the bank’s parking lot into
the bank. Other video footage captured the encounter between Cervantes and
defendant.
Throughout the trial, the State repeated the theme “actions speak louder
than words.” During her summation, the prosecutor displayed to the jury a
PowerPoint slide with the heading “ACTIONS SPEAK LOUDER THAN
6
WORDS,” containing the still-shot of Jack Nicholson from The Shining, and
said:
We’ve all seen this, right? This movie? And, you
know, these words, “Here’s Johnny.” Right? If you’ve
never seen the movie, The Shining, this is creepy, but
not scary, right? You’ve never seen it. All right. This
guy looks creepy and he’s saying some very
unthreatening words, “Here’s Johnny.” 3 But if you
have ever seen the movie The Shining, you know how
his face gets through that door. So, again, I just point
that out to illustrate. It’s not just the words; it’s what
you do before and what you do after the words that
matters. And that’s what makes this a robbery.
After the prosecutor concluded her summation, defense counsel objected
to the photo’s use. A colloquy ensued, the pertinent parts of which are as
follows:
Defense counsel: Jack Nicholson’s face is through the
broken door. That is preceded by him smashing that
door with an ax. So, that is clearly --
The Court: Is that what was on there?
Prosecutor: No.
....
Defense counsel: I mean for those who are familiar
with the film understand the context that the door was
3
The movie quoted the words used to introduce the star of the nighttime television
talk show, “The Tonight Show Starring Johnny Carson,” that aired for thirty years
beginning in 1962. A&E Television Networks, Johnny Carson Makes Debut as
“Tonight Show” Host (November 13, 2009), https://www.history.com/this-day-in-
history/johnny-carson-makes-debut-as-tonight-show-host.
7
smashed with an ax, and that is certainly far more than
what occurred in this case. So, you know, we’re talking
about use of force or the threat of force, and that was
certainly preceded by the threat of immediate bodily
injury -- immediate bodily injury whereas our argument
here is that this case doesn’t include those kinds of
facts.
....
Defense counsel: Like I said, my concern is that those
familiar with the film, and probably everybody is
working in the back of their minds the facts that he
smashed that door with an ax, so.
The Court: Okay. Well, is there anything you want me
to say?
Defense Counsel: Just that the State gave an
illustration with -- showing a clip from a -- not a clip,
but a picture, a still from a film, and only meant to
illustrate what? I’m asking.
Prosecutor: That it’s not the words -- it’s not the words
“Hey Johnny” alone.
During the colloquy, the trial judge offered a curative instruction, but
stated, “If I do that though, I’m underscoring again, the prosecution’s
arguments. So, it’s -- always with those curatives is always a double-edged
sword.” Defense counsel ultimately agreed that “it may be best left alone.”
Thus, the court did not give a curative instruction. The jury convicted
defendant of second-degree robbery. After the trial court denied defendant’s
8
motion for a new trial, it sentenced defendant to an extended term of fourteen
years’ imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
On appeal, defendant argued that the prosecutor’s use of the PowerPoint
slide during summation denied defendant a fair trial. Specifically, defendant
argued the photograph was an inflammatory visual aid, not in evidence, that
bore no relation to the facts before the jury.
In response, the State urged that the prosecutor’s reference to the
PowerPoint slide be considered in the context of whether a robbery had been
committed, given the absence of force or an overt threat of force by defendant.
The State maintained the photograph showed only that the jury should consider
defendant’s conduct, not his words alone. And, although the State conceded it
was inappropriate to use the photograph, the State argued its use was harmless,
given the overwhelming evidence of defendant’s guilt.
The Appellate Division acknowledged that the prosecutor’s remarks
were not stricken from the record or withdrawn and highlighted the trial
court’s offer to provide a curative instruction, which was rejected by defense
counsel. In the end, the Appellate Division affirmed defendant’s conviction
and sentence, finding that the prosecutor’s remarks and the photograph from
The Shining, though unexpected, did not constitute prosecutorial misconduct
warranting reversal:
9
Taken in that context, the State’s fleeting comments
about The Shining at the end of a multi-day trial with
ample witness testimony and documentary evidence to
support the conviction, and in recognition of the
considerable leeway accorded the State in closing
arguments, were not so egregious as to constitute
prosecutorial misconduct.
We granted defendant’s certification petition, limited to the issue of
“whether the prosecutor committed misconduct during summation by using a
still photograph taken from a movie and by comparing defendant’s conduct to
that of the character depicted in the photograph.” 241 N.J. 9 (2020). We also
granted amicus curiae status to the American Civil Liberties Union of New
Jersey (ACLU) and to the Attorney General of New Jersey (Attorney General).
II.
The parties’ arguments here mirror those raised in the Appellate
Division. According to defendant, the prosecutor committed reversible error
by using the image from The Shining during summation. Specifically,
defendant contends the prosecutor “invited a comparison between the conduct
of [defendant], who was accused of nonviolent robbery, and Nicholson’s
character, who used an ax to break through a door while attempting to kill his
family.”
Defendant asserts that whether he purposely put Cervantes in fear of
immediate bodily injury was a “close call,” and the movie photograph “made it
10
more likely that the jury would reject the defense” that only a theft occurred.
Thus, according to defendant, the prosecutor’s conduct during summation was
“clearly capable of having an unfair impact on the jury’s deliberations.” To
avoid the risk of similar errors in the future, defendant suggests that the Court
adopt a prophylactic rule requiring prosecutors to provide opposing counsel
with its PowerPoint presentations before openings and summations.
The ACLU agrees with defendant’s arguments and contends that even
where an image serves a legitimate purpose, if it goes beyond what the
prosecutor could convey verbally, its use amounts to error. Recognizing that
threats can be both verbal and non-verbal, the ACLU argues the problem here
stems from the message, not the topic of discussion. The ACLU submits
further that had the prosecutor made the comparison orally and not by
PowerPoint, the court certainly would have interceded.
The State contends that, in her summation, the prosecutor sought to place focus
on defendant’s “implicitly threatening” actions, and held fast to this notion even
when the movie photograph was shown. The State concedes that “the prosecutor
should have made this argument without utilizing the photograph,” but contends
that “when the tenor of the trial and the actions taken by the court and defense
counsel in addressing this issue are taken into consideration, these brief comments
do not rise to the level of reversible misconduct.” The State highlights that it was
11
“abundantly clear” to the jury that no weapons or verbal threats were used, and the
judge and defense counsel agreed that a curative instruction about the movie
photograph was not the best course of action.
The State further contends that the “court repeatedly instructed the jury that it
was to consider only the evidence in reaching its verdict[,] and that the arguments
of counsel, including closing statements, were not evidence.” The State also
argues defendant “was not unduly prejudiced by the prosecutor’s comments, which
were reasonably related to the scope of evidence.” Finally, the State claims that
the prosecutor’s summation “did not substantially prejudice the defendant[] given
the overwhelming evidence of his guilt.”
The Attorney General largely reiterates the arguments advanced by the
State. In addition, the Attorney General submits that defendant is not entitled
to relief from this Court because he declined a curative instruction. The
Attorney General also highlights that defendant never moved for a mistrial
based on the prosecutor’s use of the PowerPoint slide. Lastly, the Attorney
General rejects defendant’s request that this Court adopt a prophylactic rule
requiring prosecutors to provide to opposing counsel any PowerPoint
presentations intended to be used before openings and summations. According
to the Attorney General, such a remedy would provide the defense with
12
advance notice of what the prosecutor plans to say in closing and allow
defense counsel to tailor his or her summation accordingly.
III.
A.
We begin our discussion of the law applicable to this appeal by acknowledging
the role prosecutors play in the criminal justice system. We recognize that role to
be “‘uniquely challenging’ because it is a ‘double calling’ -- to represent
vigorously the state’s interest in law enforcement and at the same time help assure
that the accused is treated fairly and that justice is done.” State v. McNeil-Thomas,
238 N.J. 256, 274 (2019) (quoting State v. Ramseur, 106 N.J. 123, 323-24 (1987)).
Having said that, the fundamental obligation of those representing the State in
criminal prosecutions is not to convict, “but to see that justice is done.” State v.
Frost, 158 N.J. 76, 83 (1999) (quoting Ramseur, 106 N.J. at 320). “If fairness and
justice are forgotten in the pursuit of a guilty verdict, the integrity and authority of
our criminal justice system is challenged.” State v. Smith, 212 N.J. 365, 403
(2012) (quoting State v. Goode, 278 N.J. Super. 85, 91-92 (App. Div. 1994)). So,
“[t]he duty of the prosecutor ‘is as much . . . 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.’” Ibid. (ellipsis in original) (quoting Frost, 158 N.J. at
13
83). Prosecutors therefore “may strike hard blows, [but] not . . . foul ones.” Ibid.(alteration and ellipsis in original) (quoting State v. Feaster, 156 N.J. 1, 59 (1998)).
While “prosecutors in criminal cases are expected to make vigorous and
forceful closing arguments to juries” and are “afforded considerable leeway,”
“their comments [should be] reasonably related to the scope of the evidence
presented.” Frost, 158 N.J. at 82. “[R]eferences to matters extraneous to the
evidence” may constitute prosecutorial misconduct. State v. Jackson, 211 N.J.
394, 408 (2012). “In other words, as long as the prosecutor ‘stays within the
evidence and the legitimate inferences therefrom,’” McNeil-Thomas, 238 N.J. at
275 (quoting State v. R.B., 183 N.J. 308, 330 (2005)), “[t]here is no error,” ibid.(quoting State v. Carter, 91 N.J. 86, 125 (1982)).
B.
Notwithstanding the prosecutor’s obligation to ensure that justice is served,
“even when a prosecutor’s remarks stray over the line of permissible commentary,
our inquiry does not end.” Ibid. Rather, we must weigh “the severity of the
misconduct and its prejudicial effect on the defendant’s right to a fair trial,” State
v. Wakefield, 190 N.J. 397, 437 (2007), and reverse a conviction on the basis of
prosecutorial misconduct only if “the conduct was so egregious as to deprive
defendant of a fair trial,” ibid. (quoting State v. Papasavvas, 163 N.J. 565, 625
(2000)).
14
In deciding whether prosecutorial conduct deprived a defendant of a fair trial,
“an appellate court must take into account the tenor of the trial and the degree of
responsiveness of both counsel and the court to improprieties when they occurred.”
Frost, 158 N.J. at 83 (quoting State v. Marshall, 123 N.J. 1, 153 (1991)). Factors to
be considered in making that decision include, “(1) whether defense counsel made
timely and proper objections to the improper remarks; (2) whether the remarks
were withdrawn promptly; and (3) whether the court ordered the remarks stricken
from the record and instructed the jury to disregard them.” Ibid.Here, the State admits that it erred in using the PowerPoint image from The
Shining during summation but asserts that the error was harmless -- not “of such a
nature as to have been clearly capable of producing an unjust result.” R.B., 183
N.J. at 330 (quoting R. 2:10-2).
“[W]hether an error is harmless depends upon some degree of possibility that it
led to an unjust verdict. The possibility must be real, one 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. Bankston, 63 N.J. 263, 273 (1973). Said another way,
“the prosecutor’s conduct must ‘substantially prejudice the defendant’s
fundamental right to have a jury fairly evaluate the merits of his defense.’” State v.
Roach, 146 N.J. 208, 219 (1996) (quoting State v. Bucanis, 26 N.J. 45, 56 (1958)).
When that occurs, a prosecutor breaches his or her responsibility to see that
15
“justice is done.” Frost, 158 N.J. at 83. It is in this context that we will determine
whether the prosecutor’s error in summation here -- showing the jury a PowerPoint
slide containing a still photograph from the movie The Shining with the words
“Here’s Johnny!” and the heading “ACTIONS SPEAK LOUDER THAN
WORDS” -- was harmless or violated defendant’s “right to a fair trial.” See
Jackson, 211 N.J. at 407.
C.
Turning to our jurisprudence regarding prosecutorial errors, our cases on the
question are particularly instructive -- State v. Feaster, State v. Frost, State v.
Jackson, and State v. McNeil-Thomas. In each of those cases, we considered
whether prosecutorial errors deprived the defendant of their right to a fair trial. In
Feaster, Jackson, and McNeil-Thomas, we found the prosecutors’ errors to be
harmless. In Frost, we reversed the defendant’s conviction for prosecutorial
misconduct.
As a starting point, in Feaster, we articulated that a prosecutor commits error
by communicating to the jury that the State possesses knowledge beyond the
evidence presented. 156 N.J. at 59. The defendant in Feaster was on trial for the
murder of an attendant working at a Texaco gas station in Deptford Township. Id.
at 26. For dramatic effect, the prosecutor stated during closing argument that the
defendant loaded his gun and cocked the weapon’s hammer on the ride to the
16
Texaco station. Id. at 62. The prosecutor similarly asserted that the defendant
“approached the victim from ‘the blind side’ and that he ‘shoulder[ed]’ in the
door” of the station. Id. at 56-58 (alteration in original). But neither of the
prosecutor’s remarks were supported by any evidence submitted to the jury. While
defense counsel objected to some of the prosecutor’s statements, he did not request
a curative instruction or a mistrial. Id. at 58.
In Feaster, we determined the prosecutor’s comments were inappropriate
because he strayed beyond the evidence without any “basis in the record.” Id. at
62. We concluded nevertheless that, in light of the evidence adduced at trial,
including the defendant’s inculpatory statements, the prosecutor’s comments did
not deprive defendant of a fair trial. Id. at 63-64. We also stated that, while
prosecutors are permitted to convincingly summarize the State’s case, the
summation must be limited to the evidence presented “and the reasonable
inferences to be drawn therefrom.” Id. at 58-59 (quoting State v. Johnson, 120 N.J.
263, 296 (1990)).
We reached a different conclusion in Frost, where the jury convicted the
defendant of various drug offenses emanating from his sale of illegal narcotics to
an undercover police officer. 158 N.J. at 78-83. We reversed the defendant’s
conviction, finding the prosecutor’s summation before the jury constituted
prejudicial prosecutorial misconduct. Id. at 89.
17
During the trial in Frost, officers testified in detail about a drug transaction in
See id. at 79-80. In the defendant’s
which the defendant purportedly participated. -----
vastly different version of the facts, he claimed to be an innocent bystander who
happened to be visiting his cousin when police “kick[ed] in the apartment door.”
Id. at 80. Since the outcome of the trial depended on credibility, defense counsel
sought to undermine a testifying police officer’s trustworthiness by pointing out
that the State failed to produce the “buy money” itself or a copy. Ibid. In
response, the prosecutor closed to the jury by making a clear misstatement of the
law -- that “buy money” was inadmissible. Id. at 81, 85. The prosecutor also
improperly vouched for the police officer’s credibility by suggesting “that police
officers would not lie because of the ‘magnitude’ of charges that could be brought
against them,” id. at 85, and disparaged defense counsel by calling his closing
arguments “lawyer talk,” id. at 81. During the prosecutor’s closing, defense
counsel objected to each of those references by the prosecutor and, although some
of counsel’s objections were sustained, the trial court did not strike any of the
comments or provide a curative instruction. Ibid.The Appellate Division affirmed the defendant’s conviction, finding that,
although “the prosecutor struck several foul blows,” the comments did not
constitute prejudicial error. Id. at 82. We reversed, noting that the trial judge did
not take any curative action regarding the prosecutor’s “inaccurate” and
18
“misleading” comments. Id. at 85. Furthermore, despite the Appellate Division’s
conclusion that “overwhelming” evidence pointed to the defendant’s guilt, “the
State’s entire case rested on the testimony of the officers” and “whether the jurors
believed the officers’ testimony or defendant[’s].” Id. at 87. Thus, because the
case turned on credibility, the quantum of evidence did not overcome the
defendant’s “entitlement to a constitutionally guaranteed right to a fair trial.” Ibid.We emphasized once again in Frost that prosecutors “should confine their
summations to a review of, and an argument on, the evidence, and not indulge in
improper expressions of personal or official opinion as to the guilt of the
defendant, or [otherwise engage] in collateral improprieties of any type, lest they
imperil otherwise sound convictions.” Id. at 88 (alteration in original) (quoting
State v. Thornton, 38 N.J. 380, 400 (1962)).
In Jackson, we again cautioned prosecutors against straying beyond the
evidence adduced at trial but did not find reversible error. 211 N.J. at 412-13. The
defendant in Jackson was arrested for robbing a taxi driver at a stop light. Id. at
398. Although the defendant was patted down at the time of his arrest, a
subsequent search at the police station revealed a gun, leading to an altercation
between officers and the defendant. Id. at 399. Later, one of the officers drafted a
false report, omitting the failure to find the gun during the initial search. Ibid.
19
During trial in Jackson, the State presented testimony from three different
police officers that touched upon matters extraneous to the criminal charges against
the defendant -- the defendant’s altercation with police, an assault charge filed
against one of the officers, administrative discipline imposed on the officer who
drafted the false report, and the defendant’s civil lawsuit against the department.
Id. at 410-11. At one point, defense counsel objected as to relevancy but withdrew
the objection. Id. at 410. The prosecutor commented on those extraneous matters
before concluding his summation by stating that the officer “chose to lie in his
report. And now [the defendant] wants to be a millionaire,” referring to his civil
lawsuit. Id. at 411. Defense counsel moved for a mistrial or, in the alternative, for
a curative instruction. Ibid. The trial court denied the motion for a mistrial but did
provide a curative instruction. Id. at 411-12.
Importantly, defense counsel in Jackson did not object to the testimony
proffered by the State, and the testimony was admitted as evidence. Id. at 412-13.
As to the prosecutor’s improper comments during closing, the trial judge gave a
timely curative jury instruction that its verdict must be independent of any related
but extraneous matters. Ibid. Although we noted that unnecessary comments
during summation may cause jury confusion, we concluded that reversible error
had not occurred because the prosecutor’s statements were “fully grounded in
evidence” that was admitted without objection from defense counsel. Id. at 412-
20
13. Despite concluding in Jackson that no reversible error occurred, we
nonetheless reemphasized that prosecutorial misconduct warranting reversal of a
defendant’s conviction can be based upon references to matters extraneous to the
evidence. Ibid.
Most recently, we reached a similar conclusion in McNeil-Thomas -- a case
involving the fatal shooting of an off-duty police officer who was not the intended
target. 238 N.J. at 261, 264. The officer was picking up dinner at a local
restaurant where a group of young women who had fought with the defendant and
his family about an hour earlier were eating. Id. at 261-62, 264. In closing, the
prosecutor used a five-second clip from a video surveillance camera and suggested
to the jury that the defendant, while following his stepfather’s pickup truck in a
black Cadillac CTS, drove by the restaurant where the shooting later occurred to be
sure that his intended targets were there. Id. at 270.
We first determined that the video clip had been offered and admitted into
evidence and then addressed whether it was proper for the prosecutor to suggest
during summation that the five-second clip showed the defendant’s stepfather
driving by the restaurant, followed by the defendant riding in a black Cadillac
CTS. Id. at 260-61, 272-74. This Court concluded that the prosecutor’s statements
were “fair comment on the evidence” and thus did not result in reversible error. Id.
at 280-81. We observed that the prosecutor presented the jury with the opportunity
21
to draw reasonable inferences from and connections between the testimony of the
defendant’s neighbor, who referred to the vehicle in which the defendant returned
home before the shooting as a “black sedan . . . ‘like’ a Cadillac CTS,” id. at 264,
and the police photographs and video depicting the pickup truck and the black
sedan, all of which were admitted into evidence and were part of the record, id. at
280-81. Thus, we concluded the prosecutor’s comments during summation “were
reasonable and fair inferences supported by the evidence presented at trial,”
reversed the Appellate Division’s judgment, and reinstated the defendant’s
conviction. Id. at 261.
Feaster, Frost, Jackson, and McNeil-Thomas make clear that, in closing,
prosecutors are obliged to confine their comments to the evidence admitted at trial
and reasonable inferences drawn therefrom. Failing to do so may imply that facts
or circumstances exist beyond what has been presented to the jury and encroach
upon a defendant’s right to a fair trial.
With those principles in mind, we now address whether the prosecutor here,
where the central issue at defendant’s trial was whether he committed a robbery or
a theft, improperly invited a comparison between defendant and Jack Nicholson’s
psychotic, ax-wielding character in The Shining.
22
IV.
A.
As noted, in order to convict defendant of second-degree robbery under
N.J.S.A. 2C:15-1, the jury must find that while committing a theft, defendant
used force, threatened the use of force, or purposely put the bank teller in fear
of immediate bodily injury. To establish theft, on the other hand, the State
need establish only that defendant exercised unlawful control over the movable
property of another -- the bank’s money. N.J.S.A. 2C:20-3.
To prove defendant robbed the Merchantville bank, the prosecutor
presented Cervantes, who testified that she felt threatened because she “didn’t
know what [defendant] could have in his pockets.” Similarly, Cowgill,
testified that when Cervantes tried to include the GPS tracker, defendant
leaned toward Cervantes and said forcefully: “No, you’re leaving that there.
Don’t touch that.” Cowgill also stated that Cervantes began crying when
defendant left and was shaking during and after the incident.
During summation, to convey the supposed threatening nature of
defendant’s note, conduct, and words, the prosecutor displayed a still shot
from The Shining with the innocuous words, “Here’s Johnny!” While showing
the extra-evidentiary photograph to the jury, the prosecutor stated “that [i]t’s
not just the words; it’s what you do before and what you do after the words
23
that matters,” suggesting “that’s what makes this a robbery.” The prosecutor
also told jurors who may have seen the movie, “you know how his face gets
through that door” -- a reference to the movie scene preceding the image where
Jack Nicholson smashes through the door with an ax while trying to get to and
kill his family.
Unlike in McNeil-Thomas and Jackson, in which the prosecutor
“invited” jurors to draw inferences about matters in evidence -- a video in
McNeil-Thomas and testimony in Jackson, the prosecutor in this case -- where
defendant’s prosecution for robbery hinged on whether defendant purposely
placed Cervantes in fear of immediate bodily injury -- asked jurors to draw an
inference reinforced by a disturbing photograph not in evidence. The
prosecutor’s references to the violent and frightening movie scene and use of
an inflammatory photograph with the words “Here’s Johnny!” “[were] not
reasonably related to the scope of the evidence presented” or “the legitimate
inferences therefrom,” McNeil-Thomas, 238 N.J. at 275 (quotations omitted).
Unlike in the movie scene -- where Jack Nicholson uses an ax to break through
a locked door before saying the words “Here’s Johnny!” -- no act of physical
violence preceded defendant handing to Cervantes the note that read “Please,
all the money, 100, 50, 20, 10, Thank you.” or followed her handing the money
to defendant. The prosecutor here nevertheless asked the jury to infer from the
24
photograph and the words “Here’s Johnny!” that defendant’s words and
“actions” purposefully put Cervantes in fear of immediate bodily injury.
Our jurisprudence requires “that prosecutors act in accordance with
certain fundamental principles of fairness.” Wakefield, 190 N.J. at 436. As
we explained in Feaster, comments by a prosecutor in closing that stray
beyond the evidence and the reasonable inferences therefrom are inappropriate
and improper. 156 N.J. at 59. And in Frost, we reversed the defendant’s
conviction, concluding that the prosecutor’s statements were “inaccurate” and
“misleading.” 158 N.J. 85. The prosecutor here, in an attempt to establish that
Cervantes feared for her wellbeing because of defendant’s conduct, went far
beyond the evidence at trial to draw a parallel between defendant’s conduct
and that of a horror-movie villain.
Amicus Attorney General suggests defendant is not entitled to relief
because he never moved for a mistrial based on the prosecutor’s use of the
PowerPoint slide and declined a curative instruction. Those are indeed factors
to be considered in deciding whether a defendant’s conviction should be
reversed for prosecutorial misconduct. Frost, 158 N.J. at 83-84. We note,
however, that defense counsel did offer a timely objection to the use of the
photograph, and the trial court suggested that a curative instruction might
highlight the photograph and the remarks by the prosecutor. Also, the
25
prosecutor’s comments were neither withdrawn nor stricken from the record.
We conclude that application of the Frost factors here does not undermine
defendant’s claims.
We agree with defense counsel that whether defendant purposely put
Cervantes in fear of immediate bodily injury -- thus supporting a conviction
for robbery, not theft -- was a “close call.” Weighing “the severity of the
misconduct and its prejudicial effect on the defendant’s right to a fair trial,”
Wakefield, 190 N.J. at 437, we determine the prosecutor’s comments and the
extra-evidentiary movie photograph “made it more likely that the jury would
reject the defense” that only a theft occurred. Thus, the prosecutor’s conduct
during summation was “clearly capable of having an unfair impact on the
jury’s deliberations,” intruded upon defendant’s right to a fair trial , and
constituted reversible error.
B.
We acknowledge defendant’s suggestion that, to avoid the risk of similar
errors in the future, the Court could adopt a rule requiring prosecutors to
provide opposing counsel with any planned PowerPoint presentations before
openings and summations.
To avoid objection or possible error, we encourage counsel to disclose to
each other and the court any visual aids intended to be used during closing
26
argument, but we do not require that practice. As we explained in McNeil-
Thomas, “the State is under no duty to announce to the defense each inference
it will ask the jury to reach during summation.” 238 N.J. at 279.
Nevertheless, “we remind prosecutors that they have a ‘unique role and
responsibility in the administration of criminal justice,’” Frost, 158 N.J. at 89(quoting In re Rachmiel, 90 N.J. 646, 656 (1982)), and therefore must ensure
their strategy and commentary fall within “the boundaries of permissibly
forceful advocacy,” Marshall, 123 N.J. at 161. Prosecutors must walk a fine
line when making comparisons, whether implicit or explicit, between a
defendant and an individual whom the jury associates with violence or guilt.
The use of a sensational and provocative image in service of such a
comparison, even when purportedly metaphorical, heightens the risk of an
improper prejudicial effect on the jury. Such a risk was borne out here.
Visual aids such as PowerPoint presentations must adhere to the same
standards as counsels’ spoken words. In that regard, we agree with guidance
the Delaware Supreme Court provided in Spence v. State:
This Court does not seek to discourage the use of
technology in closing arguments to summarize and
highlight relevant evidence for the benefit of the jury.
But slides may not be used to put forward
impermissible evidence or make improper arguments
before the jury. A PowerPoint may not be used to make
an argument visually that could not be made orally.
While prosecutors are given latitude in making closing
27
arguments, [their] comments must be limited to
properly admitted evidence and any reasonable
inferences or conclusions that can be drawn therefrom.
[129 A.3d 212, 223 (Del. 2015).]
The PowerPoint here fell short of that standard.
V.
For the reasons set forth above, we reverse the judgment of the
Appellate Division, vacate defendant’s conviction, and remand for a new trial.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and PIERRE-LOUIS join in JUSTICE
SOLOMON’S opinion.
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