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NJ Prosecuter Caused Unfair Trial


by in Criminal Appeals, Criminal Defense

State v. Anthony T. Ross, unpublished opinion, App. Div. Docket No. A-6334-08T4 (December 9, 2010) – Convictions reversed.

“[T]he prosecutor’s reference in summation to defendant’s ‘aliases’ and her cross-examination concerning defendant’s use of three other last names was unfairly prejudicial and denied him a fair trial…. Absent a showing of relevance, the State is prohibited from making reference to a defendant’s alias. State v. Salaam, 225 N.J. Super. 66, 72 (App. Div.), certif. denied, 111 N.J. 609 (1988)…. The State denies that the testimony it presented crossed the line established by Salaam, arguing that Rawls’s testimony that he learned ‘Anthony Ross’ was really ‘Anthony Smith’ was necessary to link Anthony Ross, the person named in the indictment, to the proofs elicited at trial concerning Anthony Smith. We have no quarrel with that assertion. It is clear, however, that the State’s references to defendant’s use of the name Anthony Ross went far beyond the clarifying purpose to which the State points. For example, there was no need for the prosecutor to question defendant about whether he had ever used the name Anthony Ross, as Rawls’s testimony was more than sufficient to establish that the person named in the indictment was the same person that Rawls and Plantier observed on the day in question. Moreover, the prosecutor’s cross-examination of defendant went much further afield than simply asking defendant if he had used the name Anthony Ross in the past. She proceeded to ask him whether he had ever used the name Mark Ross, whether he had ever used the name Anthony Lindsay, and whether he had ever used the name Anthony Brown. None of these questions were relevant to whether defendant possessed cocaine and heroin on February 9, 2008 with the intention of selling them. The only purpose served by the prosecutor’s cross-examination on defendant’s use of four other names was to tarnish defendant’s credibility and to insinuate before the jury that defendant belonged to the ‘criminal class,’ which is the very practice Salaam prohibits…. The prejudice created by the prosecutor’s improper cross-examination regarding defendant’s use of four other surnames was exacerbated by her use of the word ‘aliases’ in summation when she pointedly encouraged the jury to rely upon defendant’s use of ‘aliases’ as a basis for rejecting his testimony as unworthy of belief. In using the word ‘aliases’ the prosecutor blatantly violated the judge’s instruction at the beginning of the trial that she refrain from using that prejudicial term. As is evident from the record, her assurances to the judge that she would avoid the use of the term ‘alias’ and would ‘not harp’ on the issue were hollow promises indeed.”






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