The following appeal was recently decided by the New Jersey Superior Court – Appellate Division dealing with cumulative error during a criminal trial. Summarized by Mark Friedman of the New Jersey Public Defender’s Office.
State v. Thomas Stiles, unpublished opinion, App. Div. Docket No. A-5541-05T4 (November 18, 2009) – Conviction reversed because of errors, individual and collective, all stemming from or made more prejudicial by the testimony of police officer which “impermissibly interfered with the jury’s ability to independently weigh credibility….
The State’s case rested primarily upon the testimony of Davila, an individual with a significant criminal history. The State also had available the wire recordings and defendant’s own taped statement as additional proof. The body wire conversations, however, were at best difficult to understand; the jury did not listen to the tapes during their forty-five minute deliberation.
In his self-serving recorded statement, defendant attempted to explain away the import of his conversations with Davila…. Chopek’s testimony, therefore, became pivotal. And he vouched for Davila’s credibility, and attacked the credibility of defendant’s version of events…. Chopek presented himself as more of an expert witness than a fact witness, by endorsing Davila’s testimony as believable and casting aspersions on defendant’s credibility. As he told the jury, ‘the proof is also my credibility and what I heard.’…
Defendant also contends that the court should have cautioned the jury to scrutinize the recorded conversations with great care because of both the audibility problems and Chopek’s characterizations…. State v. Kociolek, 23 N.J. 400 (1957), requires that a jury be instructed to closely scrutinize oral statements offered as evidence because of the generally recognized risk of inaccuracy and errors in communication….
In this case, where no transcript was provided to the jury, and where they heard the poor-quality recording only once, an instruction about the unreliability of the spoken word might have been helpful to the jury. In light of Chopek’s endorsement of Davila’s credibility, his characterization of defendant’s statements as nothing more than ‘spin,’ and his comments about defendant’s intent based on his recollection of the recorded conversation, we cannot be certain that the omission did not unfairly contribute to the verdict…. [Defendant also] sought to compel the State to redact references to domestic violence and references to Stiles’s accusation that he molested their child….
The references to domestic violence and child molestation were highly prejudicial, and not necessary in light of the other equally probative and less prejudicial evidence available. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 500 (1999). The references to domestic violence and child molestation could easily create ‘undue prejudice, confusion of issues, or mislead the jury.’ N.J.R.E. 403. They should have been excluded, as the probative value was significantly outweighed by the potential prejudice to defendant…. [A]lthough the court did give the jury a limiting instruction as to the alleged domestic violence, the court merely said that the jury should not assume that defendant had been charged with domestic violence simply because confrontations occurred.
The judge did not tell the jury that they could not use this evidence in order to find defendant had a propensity towards violence and was therefore more likely than not to have committed the crime. The judge did not explain to the jury that just because of these past conflicts, they could not conclude that defendant had a propensity to violence…. [Finally,] In his summation, the prosecutor pointed out that this was not a victimless crime. He said that for the rest of her life Stiles would have to live with the knowledge that ‘when that doorbell rings,’ it might not be police officers, but rather, ‘Davila or someone just like him. A career criminal that wants money and someone has offered it to him.’… [T]he prosecutor impermissibly shifted the focus away from whether the State had met its burden of proof to establish the statutory elements beyond a reasonable doubt, to the need to protect the victim from further harm in the future. This shift in focus is improper….
In the context of a trial in which a police officer vouched for his own credibility and that of the State’s principal witnesses, as well as expressed his disbelief of defendant’s taped interview, the prosecutor’s argument that the jury should convict defendant in order to protect the victim in the future warrants a new trial. The inflammatory notion that a conviction was necessary to protect the victim had the capacity to produce an unjust result.” (M. Virginia Barta, A.D.P.D.)