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NJ Prosecutor’s Remarks Caused Defendant Unfair Trial


by in Criminal Appeals

State v. Nathaniel Smith, unpublished opinion, App. Div. Docket No. A-3701-08T4 (July 14, 2010) – Convictions reversed. “[C]hallenged remarks by the prosecutor, cumulatively considered, deprived defendant of a fair trial…. He points to four separate incidents: 1) using defendant’s street name ‘Corrupt’; 2) eliciting testimony from Stewart that defendant was in jail; 3) referring to the fact that defendant was ‘broke’ and ‘on welfare’ as a motive for committing the offenses; and 4) eliciting testimony from both Stewart and Davis that they were ‘scared’ of defendant to explain inconsistencies in their testimony and prior out-of-court statements without the court providing a limiting jury instruction…. Here, although ostensibly admitted to show Stewart’s familiarity with defendant, there was no real or genuine issue at trial related to either defendant’s identity or his relationship with Stewart. Thus, the repeated reference to defendant’s nickname “Corrupt” was entirely gratuitous and prejudicial since the moniker was highly suggestive of prior criminal or bad conduct on the part of defendant. See N.J.R.E. 404(b). Indeed, the prosecutor reinforced this impression in his closing argument when he remarked that Davis ‘got involved with a corrupt individual [who] lives up to his name.’… The remark unfortunately was neither isolated nor benign, but magnified by Stewart’s ‘unexpected’ blurting out, on direct examination, that defendant ‘had been to jail.’ Although the judge sustained defense counsel’s objection and instructed the jury to ‘totally disregard’ the comment, the damage had already been done. The danger of indelibly branding defendant as a bad person was very real…. Adding to this strong potential for prejudice is the prosecutor’s elicitation on re-direct examination of the State’s witnesses that they feared defendant because ‘he probably would try to do something, get us hurt or something.’ Although supposedly offered to explain prior inconsistencies in their statements made to the police after the shooting, it was never demonstrated exactly in what respect the witnesses’ so-called fear of defendant caused them initially to be less than candid in their account of the incident…. In the absence of such a limiting instruction, the jury was free to use this testimony to improperly infer defendant was a dangerous or violent person. Compounding these errors, the prosecutor referred in summation to defendant’s impoverishment and receipt of welfare. As justification, the State points to defense counsel’s reference in summation to Stewart’s impecuniosity and defendant’s comparative financial stability…. Although the prosecutor’s references to defendant’s financial circumstances may have been in response to, and invited by, defense counsel’s comments about Stewart’s motives and impoverishment, nevertheless, under the circumstances and when considered in combination with the other challenged remarks, the cumulative effect casts serious doubt on the verdict so as to require reversal. While the prosecutor’s remarks about defendant being ‘broke’ and ‘on welfare’ may have attempted to ‘right the scales’ in this one individual instance, the combined effect of this comment together with the prosecutorial errors we have already identified were sufficient, in our view, to prejudice the fairness of defendant’s trial and therefore cast doubt on the propriety of the jury verdict.”






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