Errors pile up to reverse conviction
This is a great case that I was kind of involved in as I represented one of the witnesses. In addition, I watched part of the trial. This really shows the importance of asking for a mistrial in New Jersey and making sure the record is clear.
SUPERIOR COURT OF NEW JERSEY
provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2. We reverse and remand for a new trial.
We discern the following facts and procedural history from
On October 29, 2004, at approximately 7:30 p.m., Dale Foat
was shot twice; once in the head and once in the chest. As a
result of the shooting, a portion of his left lung was removed.
On October 30, 2004, Foat identified Davis as the shooter
and Albert Snell as being involved in the shooting. After Foat
was arrested on unrelated drug charges in November 2004 and
released on bail, he recanted his identification, denying that
Davis had any involvement in the shooting. He subsequently
identified Snell as the shooter.
Davis was indicted on December 14, 2005, and charged with:
first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A.
2C:11-3(a)(1),(2) (count one); third-degree unlawful possession
of a weapon, N.J.S.A. 2C:39-5(b) (count two); second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(a) (count three); and third-degree witness tampering, N.J.S.A.
2C:28-5(a) (count four). The fourth count related to
allegations that Davis had caused Foat to recant his original
identification of Davis as the shooter.
The trial commenced on July 18, 2006. There was no
forensic evidence tying Davis to the shooting and, as noted,
Foat had recanted his statement that Davis shot him. The State
presented testimony, including Foat’s recorded statement under
oath, that Davis shot Foat and that, when Foat was subsequently
arrested on unrelated drug charges, Davis arranged for his bail
to be posted in exchange for Foat recanting his story and
implicating Snell in the shooting. The State called Foat and
his bail bondsmen, Robert Ellison, as witnesses at trial, but
neither witness implicated Davis in the shooting or supported
the State’s theory of his involvement in the posting of Foat’s
Foat had initially refused to appear as a witness at all,
and it was suggested by the State that it would seek to have his
sworn statement introduced pursuant to N.J.R.E. 804(a)(2) and
1 Ultimately, Foat did appear as a witness, repudiated
not supplied to us, known as a Gross hearing, see State v.
Gross, 121 N.J. 1, 17 (1990), to determine whether the prior
sworn statement was reliable and could be introduced
substantively into evidence if the witness later recanted the
There had been a prior proceeding, a transcript of which wasA-3799-06T4
his earlier statement to the effect that he was shot by Davis,
and testified that Snell shot him. The audiotape of the
statement implicating Davis was played for the jury pursuant to
N.J.R.E. 613 and 803(a).
Prior to the indictment against Davis, Ellison had given
the police a sworn statement to the effect that he was
approached by Davis, whom he knew as “Love,” and asked how much
cash would be required to obtain a $50,000 bail bond, but
without mentioning Foat. He told “Love” that it would cost
$2,500. Shortly thereafter, Foat’s relatives came to Ellison’s
office with $2,500 and arranged for the bail bond. Just before
the start of the trial, however, Ellison also recanted his
identification of Davis as the “Love” involved with Foat’s bail,
contending that it had been someone else whom he also knew as
During his direct examination, the prosecutor asked Ellison
if he was providing Davis with favorable testimony because he
feared Davis’s “reprisals.” Ellison responded, “I fear no man.”
The prosecutor then approached a muscular man wearing a tank top
in the audience and asked, “Even a guy with biceps this big?”
Defense counsel objected and requested a mistrial.
statement during his testimony. See also State v. Byrd
N.J. ____ (2009).
Counsel then went to sidebar, where the following
discussion took place:
[Defense Counsel]: Your Honor, this is
the second time that he insinuated that my
guy is behind — first, the first objection
I made was when Dale Foat was on the stand
and he said Dale Foat is getting pressured
by inmates in the jail so that he won’t
testify against Ronnel Davis.
He just, just so the record reflects,
he just walked over to a gentleman that’s in
the courtroom, has somewhat of a tank top
type of shirt or a shirt with the sleeves
cut off and just so happens to have big
arms. He walked, the prosecutor just walked
over to this individual, stood by this
individual while the witness Robert Ellison
is testifying and insinuated,  we cannot
sugar coat this, that my client has this
individual in the courtroom, in the
courtroom as a sign of force or some threat
to this particular witness.
The, the prosecutor has asked the
witness on the stand does he know any
individuals in the courtroom. Then he walks
over to an individual and says not even
this, not even an individual with arms this
I’m moving for a mistrial at this
particular point. I think the State has
clearly violated the rules of evidence, has
prejudiced my client, that none of it has
anything to do with the charges, what he’s
charged with in the indictment.
And, your Honor, furthermore, the State
is adding things that’s not even in evidence
into this case. And what I mean by not in
evidence, I mean he’s bringing in stuff that
there is no reports on, an individual
sitting in the courtroom. The courtroom is
open to everyone. It’s a public courtroom.
THE COURT: Let me ask, [prosecutor],
do you know who this person is?
[Prosecutor]: Judge, all I know is
your sheriff’s officer has gone to another
person who is currently in this courtroom to
tell him not to be staring at witnesses, and
we can lay a foundation if you want and put
that on the record. I know Officer Eckel
told you that happened earlier.
There are a lot of people in this
courtroom in the back staring at all the
witnesses as they come in, and this one
particular individual [has been] here since
the morning. He [stated he] was here under
oath for Ronnel Davis. Nobody understood
what he meant by that, but that’s what he
said. And he’s a big man. He seems to be a
weight lifter type because his arms are
large and he appears to have a negative
influence on all the witnesses here because
in my view from what I’m seeing, and I’m not
staring at these people because, of course,
they’re behind me and I’m focusing on the
witnesses, but it appears they’re trying to
intimidate the witnesses.
I’m not saying Mr. Davis is behind
that. It might very well be that Mr.
Ellison is afraid to be labeled a rat and
there are people on the street who are
coming in here to make sure he doesn’t
testify against one of their own so-tospeak.
[Defense Counsel]: Your Honor —
[Prosecutor]: And, also, one other
thing that I want to put on this record. I
didn’t ask the court to do this, but the
court sealed this courtroom this morning
when Mr. Foat was on the stand and the
windows were covered with paper so that no
one could look inside the courtroom and the
doors were locked.
Now, I discovered that well into Mr.
Foat’s testimony, and I assume the court did
that because of security problems that are
attending to this trial. And I’ll remind
your Honor what — the court what your Honor
said at the very beginning. There is
something very unusual and suspicious of how
people are changing their story and not
complying with subpoenas and making all
these la[st] minute provisions to —
revision to their previous statements prior
to trial. Your Honor did say something to
[Defense Counsel]: Your Honor, that
was at a hearing . . . that your Honor
conducted, and that is not a part of this
case. And there’s a serious miscarriage of
justice that’s being carried out through
this trial, your Honor.
Oh, my God, I mean I can’t believe it.
I mean the State has said that this witness
has been looking — we just opened the
courtroom back up just now. . . . This is
the only witness, and for him to say that
these people are looking at witnesses is
crazy, as if to give a sense of threat.
This man is entitled to a fair trial.
His family can, if he wants to put each one
of the family members on the stand, this is
his family, and they’re entitled to attend a
[Prosecutor]: Are you suggesting,
counsel, the person with the biceps is a
[Defense Counsel]: No, I’m not.
[Prosecutor]: Okay, so that’s clear.
[Defense Counsel]: No. And just so
you understand —
THE COURT: Look, let me get to the
heart of this. First of all, I don’t
remember whether it was that individual
because I just don’t remember the face, but
at nine o’clock this morning or shortly
thereafter, an individual came into the
courtroom whose name was mentioned by
Officer Eckel as Davila.
[Prosecutor]: Same person, your Honor.
THE COURT:  That individual was
making hand signals and said in open court
that he was here for Ronnell Davis. Officer
Eckel asked him to leave the courtroom and
directed him, at which point the man was
staring through the window. Officer Eckel
went out into the hall, asked the man to
step away from the window and stay away from
the back entrance to the courtroom. Officer
Eckel then placed white paper over the
I don’t know who that person is in the
back, but that individual that was in the
courtroom came back and sat on the other
side of the courtroom. Again, but I don’t
think that it’s reasonable to draw any
inferences regarding this particular
witness. I don’t know if he knows this
person. So I’m going to strike that
question, and I will direct the State not to
ask questions if that witness or any other
witness threatened him in open court in
front of the jury, and the motion for a
mistrial is denied.
[Defense Counsel]: Your Honor, just so
the damage is done, I just want the record
to reflect that, your Honor, my client and I
asked the court sheriff’s officers to keep
that individual out of the courtroom because
we thought that was quite bizarre this
morning the way that he walked in here. And
for the State to go and use him, your Honor,
I’m going to ask for a recess at this
particular point because I am baffled at the
approach that the prosecutor — the damage
is done, your Honor. I don’t think that
there [is a] curative instruction for what
the State has done in this case, and I’m
asking the court for a recess and that we
convene in a few minutes.
[Prosecutor]: Let me just be very
clear about this. There can be no basis for
a mistrial. All [I] asked [was] if the
witness is intimidated by a man with big
biceps sitting in the back. I never said
there was a connection to the defendant.
Counsel thought the spectator’s behavior was
bizarre this morning.
We heard from Detective Smith that
people are reluctant to testify in the city
of New Brunswick because of fear of
THE COURT: [Prosecutor], I don’t want
to bring up the fact that a person is in the
back of the room and clearly refer to him as
being a source of intimidation to a witness.
A lot of people could draw a lot of
conclusions which are not appropriate.
The trial judge denied the application for a mistrial and
instructed the jury to disregard the prosecutor’s question. He
further instructed them that:
There is no reason to believe that anyone in
this courtroom has done anything with regard
to this witness. This witness said he
doesn’t know who is the person in the
courtroom and, therefore, it is totally
outside the scope of this trial and it
should be disregarded by the jury.
During summation, despite the judge’s admonition during the
side-bar conference quoted above, the prosecutor again
referenced the muscular man in the audience in connection with
the possible intimidation of Ellison. Defense counsel objected
and again moved for a mistrial.
Here in this courtroom when I asked
Robert Ellison are you afraid of reprisal,
he said I’m not afraid of anyone. And then
that’s when I stood back here next to a guy
who came into this courtroom —
[Defense Counsel]: Objection, your
[Prosecutor]: –in a muscle tee shirt.
THE COURT: Excuse me, [Prosecutor],
I’ve excluded that.
[Prosecutor]: Judge, it’s part of the
[Defense Counsel]: No, and that was
stricken testimony, your Honor.
THE COURT: Side bar.
(The following is heard at side bar:)
[Defense Counsel]: Your Honor, I am
moving for a mistrial. Clearly we objected
to that when the State did it at the time.
The court instructed the jury to disregard
it. It wasn’t placed into evidence. The
State again has done that, your Honor, and
he’s making references to something that
your Honor specifically instructed the jury
I think that is highly prejudicial to
my client, your Honor, and I don’t think he
can get a fair trial at this time because,
you know, the State, what the State just
did, he has simply disregarded a ruling of
the court and he has made reference to —
strike that. But he has done this, your
Honor, and that, I have to submit to the
court, that is clearly prejudicial to my
client, and there’s no way my client can get
a fair trial.
THE COURT: I did exclude that.
[Prosecutor]: Judge, I didn’t recall
you excluded that.
THE COURT: And I instructed the jury
not to take that into account. I do know
that particular person was making signs when
the witness [Foat] was on the stand, and I
excused the jury and excluded him from the
courtroom. So perhaps there was a mix-up.
[Prosecutor]: Judge, I totally do not
recall the court excluding the exchange I
had with the witness, but I accept it and I
will stay away from it.
[Defense Counsel]: Well, your Honor.
[Prosecutor]: The subject with the man
with the biceps.
[Defense Counsel]: I’m going to ask
the court to instruct the jury to totally
disregard the comment by the prosecutor,
that, that at the time that that was done it
was stricken by the court and the jury was
instructed to disregard that.
Just so they understand that they can
in no way, and I know your Honor is going to
tell them that nothing we say is considered
to be evidence, but just so the record is
clear that they understand that they can in
no way consider that comment by the
[Prosecutor]: Judge, maybe you’re
going to want to think about that. I don’t
know if counsel wants you to highlight it.
I don’t know if you want the instruction
[Defense Counsel]: Certainly I want it
done right now. It was just done.
THE COURT: I will caution the jury.
The trial judge again instructed the jury to disregard what the
prosecutor had said.
On July 27, 2006, the jury returned a guilty verdict on the
first three counts, but found Davis not guilty as to count four,
the witness tampering charge.
On August 1, 2006, the assistant prosecutor who tried the
case wrote to the trial judge and defense counsel, outlining
potential misconduct by Juror #3 during Davis’s trial. During
voir dire, Juror #3 had remained silent when asked if she knew
any law enforcement personnel. The assistant prosecutor had
just learned that Juror #3 was a paralegal who had worked with
another assistant prosecutor when he was in private practice.
According to the August 1 letter, that assistant prosecutor
told the trial prosecutor that his relationship with the juror
was purely “professional” and they had no contact “outside the
office on either a social or personal basis.” However, during
Davis’s trial, on July 25, 2006, Juror #3 visited the
Prosecutor’s Office and asked to see her former co-worker. When
told he was not in the office at the time, she left him a note
which read: “I came to visit you. I thought you didn’t eat
lunch. I’m on jury duty across the street. Sorry I missed
The assistant prosecutor attempted to call Juror #3 at work
on July 26, 2006, but was advised that she was still on jury
duty. He called her again at work on July 28, 2006, and was
able to speak with her. She told him that “she had been a juror
on a criminal case, and that the case resulted in a guilty
verdict. [Juror #3] asked [the assistant prosecutor] what the
sentence was for attempted murder, and he replied that he would
have to check and would let her know.”
On July 31, 2006, the assistant prosecutor informed the
trial prosecutor that he knew one of the jurors at Davis’s
trial. The trial prosecutor “realized that [Juror #3] had not
disclosed during voir dire her former working relationship with
[his colleague]. [He] instructed [his colleague] to have no
further contact with [Juror #3].” He asserted in his August 1
letter that Juror #3’s conduct and acquaintance with the other
assistant prosecutor did not affect “her ability to function as
a fair and impartial juror.”
Davis moved for a new trial based on both juror and
prosecutorial misconduct. It appears from the record that the
juror in question was not questioned by the trial court as to
why she did not identify the assistant prosecutor as someone she
knew or why she tried to visit him during the trial. Oral
arguments were heard on the motion January 17, 2007. The trial
judge denied Davis’s motion and proceeded to sentencing.
The judge granted the State’s motion for an extended term
under N.J.S.A. 2C:44-3(a) and found aggravating factors three,
six, and nine and no mitigating factors. N.J.S.A. 2C:44-1.
Davis was sentenced to a term of twenty-five years of
imprisonment, subject to NERA for count one; a concurrent fouryear
term for count two; and a concurrent seven-year term for
count three, as well as applicable fines.
This appeal followed. Davis moved before this court on
March 12, 2009, to file a pro se supplemental brief. We denied
the motion on March 20, 2009.
drawn to our attention that the trial court should have merged
counts two and three into count one. See State v. Diaz, 144
N.J. 628, 636 (1996).
Although not raised by defense counsel on appeal, the State hasA-3799-06T4
The following issues were raised in Davis’s original brief
to this court:
THE DEFENDANT RONNELL DAVIS WAS DENIED A
FAIR TRIAL BECAUSE JUROR #3 DID NOT DISCLOSE
HER RELATIONSHIP WITH AN ASSISTANCE
THE PROSECUTOR’S COMMENTS WERE SO
PREJUDICIAL THAT THEY REQUIRE A REVERSAL.
In Point I, Davis argues that he was denied a fair trial
because Juror #3 failed to disclose her relationship with the
assistant prosecutor and then visited the Prosecutor’s Office
during his trial. We agree that the juror’s conduct raises
serious concerns as to the impartiality of the jury at Davis’s
Where a juror on voir dire fails to
disclose potentially prejudicial material,
such as that involved in this case, a party
may be regarded as having been denied [a]
fair trial. This is not necessarily because
of any actual or provable prejudice to his
case attributable to such juror, but rather
because of his loss, by reason of that
failure of disclosure, of the opportunity to
have excused the juror by appropriate
challenge, thus assuring with maximum
possible certainty that he be judged fairly
by an impartial jury.
[State v. Cooper, 151 N.J. 326, 349 (1997),
cert. denied, 528 U.S. 1084, 120 S. Ct. 809,
145 L. Ed. 2d 681 (2000) (quoting In re
Kozlov, 79 N.J. 232, 239 (1979)).]
However, “[a]bsent an affirmative showing that a litigant would
have exercised a peremptory challenge to exclude a juror, the
voir dire omission is harmless.” Id. at 350.
Davis argues that he “would have absolutely exercised one
of his peremptory challenges in removing Juror #3.” At the
motion hearing, the trial judge disagreed with that argument,
observing that Davis failed to exercise his peremptory
challenges with other jurors who had a connection to law
enforcement. The trial judge noted that Davis did not use
peremptory challenges against: (1) Juror #2, whose good friend
was a State Trooper; (2) Juror #6, who knew one police officer;
(3) Juror #9, whose cousin is a State Trooper; (4) Juror #11,
whose mother’s friend is a police officer; and (5) Juror #14,
whose sister-in-law’s brother is a police officer.
The trial judge did note, however, that Davis used a
peremptory challenge against Juror #10, who was the cousin of
the First Assistant Prosecutor. The trial judge dismissed the
importance of this challenge by noting that: “Anyone who’s a
relative of a high ranking Assistant Prosecutor would, I’m sure,
have been challenged by any qualified defense attorney.”
We recognize that Davis has not made a clear affirmative
showing that he would have used a peremptory challenge against
Juror #3. Nevertheless, while Davis did not use a peremptory
challenge against all potential jurors who had either tenuous or
more significant relationships with law enforcement, Davis did
use a peremptory challenge against the only individual who
identified herself as a relative or friend of an employee of the
In State v. Thompson, 142 N.J. Super. 274 (App. Div. 1976),
we reversed defendant’s conviction and remanded for a new trial
under similar circumstances, largely because there was no voir
dire of the juror so that the trial judge could assess the
situation with a full record. In Thompson, a juror failed to
disclose that he worked as a corrections officer when directly
asked if he was currently, or ever, employed in law enforcement.
Id. at 278-79. “The trial judge, in denying a new trial, based
his determination on a finding that the juror’s failure to
respond to the question in light of his employment and current
participation as a juvenile counselor was probably the result of
misunderstanding or inadvertence.” Id. at 279 (emphasis added).
The trial judge found that the lack of “deliberate deception”
eliminated any possibility of juror bias. Ibid.
In the present case, Juror #3’s omission was not as blatant
as that of the juror in Thompson, in that she herself had not
worked for law enforcement but was acquainted with someone who
did. However, the trial judge in this case reached factual
conclusions similar to those of the judge in Thompson, without a
voir dire of the juror. In denying the motion for a new trial,
the trial judge stated:
[U]nder the circumstances of this case I
don’t believe that [Juror #3]’s answer was
inaccurate in any way or misinformed the
Court or misled anyone in any way. I don’t
believe that either she considered herself a
friend of [the assistant prosecutor] or even
if she were a friend, that he was
encompassed in law enforcement. That’s
usually considered to be policemen or the
like, State Troopers.
We find it difficult to understand how the juror could have
considered the assistant prosecutor not to be a “friend” when
she made an effort to visit him during the trial. Because the
juror was never questioned, the record sheds no light on that
In both Thompson and the present case, these conclusions
were reached without questioning any member of the jury.
Manifestly, a finding either way on any
of these fact issues could only be made
after a full inquiry of not only the
affected juror but all the members of the
jury panel. . . . In any event, the judge
proceeded without an evidentiary hearing to
make the negative findings outlined above .
. . .
See also State v. Scherzer, 301 N.J. Super. 363, 488 (App.
Div.), certif. denied, 151 N.J. 466 (1997) (“Although the trial
judge has discretion in the way to investigate allegations of
jury misconduct, an adequate inquiry on the record is necessary
for the purposes of appellate review.”).
Compounding the potential prejudice resulting from the
omission during voir dire is Juror #3’s disregard for the trial
judge’s instructions. During his preliminary instructions to
the jury, the trial judge stated:
[D]uring the trial you’re not to speak or
associate with the attorneys, the witnesses
or the defendant, Mr. Davis, nor are they
permitted to speak or associate with you.
This should not be taken as rudeness but as
a way to ensure fairness to both sides. . .
I can’t monitor you about not speaking
to anyone about the case or reading any
reports. I leave it to your fairness, your
judgment and your faith to your oath as
Juror #3 disregarded this instruction and visited the
Prosecutor’s Office in an attempt to speak to the assistant
prosecutor who was her former co-worker. While he was not
assigned to Davis’s case and she was initially unsuccessful in
contacting him, her actions nonetheless create a strong
appearance of impropriety.
We will not overturn the discretionary decision of a trial
court unless a clear abuse of discretion is shown. State v.
Levitt, 36 N.J. 266, 272 (1961) (“Motions for a new trial are
addressed to the sound discretion of the court; and the exercise
of the discretion will not be interfered with on appeal unless
a clear abuse of it is shown.” (internal quotation marks and
citation omitted)). Because the trial judge failed to engage in
any type of fact-finding process as to the reasons, if any,
behind Juror #3’s initial failure to identify the assistant
prosecutor during voir dire, especially in light of her
subsequent decision to make a visit to him during the trial, and
any bias resulting from her connection with the Prosecutor’s
Office, we conclude that those unexplained events cast serious
doubt on whether Davis was afforded his “fundamental right of
trial by a fair and impartial jury.” Thompson, supra, 142 N.J.
at 281 (quoting Wright v. Bernstein, 23 N.J. 284, 294 (1957)).
We need not decide whether the issues related to Juror #3,
“standing alone,” would call for reversal because we consider it
along with Davis’s second argument discussed below. In the
“aggregate,” we conclude that the two together “clearly deprived
the defendant of the type of trial upon which our system of
criminal justice soundly insists
125, 134 (1954).
In Point II, Davis challenges the statements made by the
prosecutor, both during his questioning of Ellison and in his
summation, that someone in the courtroom was seeking to
intimidate Ellison. The State argues that no harm was done
because the jury was instructed to disregard the prosecutor’s
statements and that there was ample evidence, presented to the
trial judge at sidebar, that someone was attempting to
intimidate Ellison. We also note that Davis was, in fact,
acquitted of the tampering count.
During his direct examination of Ellison, the prosecutor
walked into the public seating area of the courtroom and clearly
implied that a muscular man wearing a tank top who was seated
there was intimidating Ellison. Upon Davis’s request for a
mistrial, the trial judge instructed the jury to disregard the
prosecutor’s statements. He also directed the prosecutor “not
to ask questions if that witness or any other witness threatened
him in open court in front of the jury.” During summation,
however, the prosecutor, who claimed not to have remembered that
the issue had been excluded, again suggested that Ellison was
being intimidated by the muscular man in the gallery. Davis
.” State v. Orecchio, 16 N.J.A-3799-06T4
again moved for a mistrial, which was denied. The trial judge
again instructed the jury to disregard the prosecutor’s
We find that the statements of the prosecutor were the
equivalent of testimony that the muscular man was, in fact,
intimidating Ellison. See State v. Farrell, 61 N.J. 99, 102-03
(1972) (“These comments were the equivalent of testimony by the
prosecutor that the defendant had procured the presence of these
men for the purpose of intimidating a State witness and
therefore was a party in an attempt to obstruct justice.”).
“[A] prosecutor’s closing argument must be limited to the
facts in evidence and inferences reasonably to be drawn
therefrom.” State v. Bey, 129 N.J. 557, 620 (1992). There was
nothing presented in the record to suggest that the muscular man
in the audience was in any way connected to Davis or
intimidating Ellison. At sidebar, it was revealed that, when
the man came into the courtroom earlier in the day, he stated to
procedure when individuals in the audience are suspected of
being in court for inappropriate reasons “would be to bring the
matter to the court’s attention.” 61 N.J. at 102 n.1. This
procedure was apparently followed when Foat was testifying
during the morning session on July 19, 2006, and the individual
was removed from the courtroom. However, he returned for the
afternoon session during which Ellison testified, but was not
removed at that time. He was never questioned under oath as to
the nature of his actions.
The Supreme Court recognized in Farrell, supra, that the properA-3799-06T4
a sheriff’s officer that he was there “under oath for Ronnell
Davis.” However, Ellison testified that he did not recognize
anyone in the courtroom and that he “fear[ed] no man.”
To determine whether prosecutorial misconduct in summation
warrants reversal, we must assess whether the misconduct “was so
egregious that it deprived the defendant of a fair trial.”
State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). In
making this assessment, we must consider “the tenor of the trial
and the responsiveness of counsel and the court to the
improprieties when they occurred.” State v. Timmendequas, 161
N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S.
858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The prosecution’s
duty to achieve justice does not forbid a prosecutor from
presenting the State’s case in a “vigorous and forceful” manner.
State v. Ramseur, 106 N.J. 123, 320 (1987) (citation omitted).
Indeed, the Supreme Court has recognized that “criminal trials
create a ‘charged atmosphere . . . [that] frequently makes it
arduous for the prosecuting attorney to stay within the orbit of
strict propriety.'” Ibid. (quoting State v. Bucanis, 26 N.J.
45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d
In the present case, the prosecutor not only provided
inappropriate testimony during Ellison’s direct examination, but
again made similar statements during summation despite an
admonition from the trial judge following his initial
impropriety. While the trial judge did provide a curative
instruction following both missteps by the prosecutor,
considering the record as a whole, including the issues raised
with respect to Juror #3, this simply was not sufficient to
remedy the error.
There was no forensic evidence presented to incriminate
Davis. The State’s entire case rested on the prior statements
of Foat and Ellison, and the theory that neither of them would
testify truthfully because they feared reprisal by Davis or
someone else. Because the case depended almost entirely on
whether the jury believed the State’s intimidation theory, we
“conclude that the inappropriate comments made by the prosecutor
could have improperly swayed the jury and denied defendant a
fair trial.” State v. Smith, 167 N.J. 158, 188 (2001) (“Because
defendant’s guilt or innocence depended on whether the jury
believed the  witnesses, the prosecutor’s comments clearly
were capable of having an unfair impact on the jury’s
deliberations, thereby depriving defendant of a fair trial.”).
In conclusion, we find that, taken in the aggregate, the
errors discussed above deprived Davis of his fundamental right
to a fair trial. Orecchio, supra, 16 N.J. at 134.
Consequently, we reverse Davis’s conviction and remand the
matter for a new trial on counts one through three.
Reversed and remanded.
DOCKET NO. A-3799-06T4
STATE OF NEW JERSEY,
Submitted March 11, 2009 – Decided
Before Judges Rodríguez and Waugh.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
Defendant Ronnell Davis appeals his conviction for
attempted murder, unlawful possession of a weapon, and
possession of a weapon for an unlawful purpose. Davis was
sentenced to imprisonment for an aggregate of twenty-five years,
subject to the eight-five percent parole ineligibility
May 26, 2009