State v. Timothy A. Paziora, unpublished opinion, App. Div. Docket No. A-1396-08T4 (June 10, 2010) – Convictions reversed because “the prosecutor’s summation exceeded the bounds of legitimate advocacy” in numerous respects.
“In some portions of her closing, the prosecutor broadly claimed that Angie’s calendar was ‘powerful corroborative evidence’ that verified ‘each and every incident, every situation. This is the corroboration.’ Such comments were clearly improper because, as defendant correctly argues, the calendar did not corroborate Kate’s allegations. It merely verified that defendant stayed overnight at Angie’s home. Therefore, to the extent that the prosecutor suggested to the jurors that they should use the calendar to ‘check each time’ and use the calendar ‘to confirm and verify’ Kate’s allegations, the prosecutor mischaracterized the evidence and urged the jury to draw an improper inference. Quite simply, the calendar did not verify the alleged victim’s accusations…. A review of all of the prosecutor’s references to Angie’s calendar demonstrates that the instances where the prosecutor asked the jury to draw the improper inference that the calendar corroborated Kate’s allegations vastly exceeded the instances where the prosecutor’s references to the calendar were proper. For that reason, the prosecutor’s arguments respecting the calendar ran afoul of the limits the Court established … because the prosecutor asked the jury to draw inferences that were not supported by the evidence…. We view the prosecutor’s remarks here – ‘he can’t really go with believability and credibility and consistency … because he knows after listening and hearing from his client . . . versus the State’s witnesses that it’s going to be guilty’ — as strikingly similar to the argument we condemned in Lockett [249 N.J. Super. 428, 434]…. As in Lockett, the prosecutor’s statement here that defense counsel knew his client was guilty casts unfair aspersions on defense counsel. Such an argument suggested to the jury in no uncertain terms that defense counsel was knowingly representing a guilty man. This unwarranted attack on defense counsel unfairly impugned his integrity and demeaned him and is therefore an instance of prosecutorial misconduct…. Defense counsel promptly objected, the judge overruled counsel’s objection and refused to give a curative instruction to the jury. The jury was not even aware that the judge told the prosecutor to ‘rephrase’ her argument. [W]e conclude that defendant has established all three criteria for the granting of a new trial: the remark was highly improper; defense counsel objected promptly; and the judge refused to intervene…. [W]hen we view the prosecutor’s summation in its entirety, we conclude that her arguments are rife with improper comments. In the aggregate, the prosecutor’s closing asked the jury to draw inferences that were not supported by the evidence, denigrated defense counsel and demeaned his role, suggested that defense counsel was defending a man he knew was guilty and accused defendant of planning to commit crimes of which he was never charged.”