State v. Todd A. Mosby, unpublished opinion, App. Div. Docket No. A-3233-08T4 (April 19, 2010) – Convictions reversed. ” [T]he assistant prosecutor had acted improperly by having A.M. brought into the courtroom during his closing argument, having him seated in the front row and identifying him in front of the jury.
The assistant prosecutor explained to the trial court that he had a detective from his office locate A.M. and bring him to court so that he could show that A.M. was not in contempt of court. However, as the trial court observed, once defense counsel determined that he would not seek a warrant for A.M.’s arrest and would proceed with his closing argument, there was no need for the assistant prosecutor to demonstrate to the court that A.M. had not willfully refused to comply with the defense subpoena….[T]here was no reason for the assistant prosecutor to identify A.M. before the jury during his summation…. Even if this was the assistant prosecutor’s purpose, he could have made A.M.’s presence known to defense counsel outside the presence of the jury…. A.M.’s appearance in the courtroom during the assistant prosecutor’s closing argument, and the assistant prosecutor’s identification of him before the jury, substantially undermined … defense counsel’s closing argument.
A.M.’s appearance suggested to the jury that, despite defense counsel’s assertions, the defense had not made a diligent effort to have A.M. testify. A.M.’s appearance also suggested to the jury that, had he testified, A.M. might have contradicted rather than supported defendant’s testimony…. [W]e are convinced that the trial court should have granted defendant’s motion for a mistrial. In our view, the instruction provided to the jury did not cure the prejudice that resulted from the assistant prosecutor’s improper action.”