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.

I

We discern the following facts and procedural history from

the record.

A

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

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allegations that Davis had caused Foat to recant his original

identification of Davis as the shooter.

B

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

bail.

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

(b)(1)(A).

1 Ultimately, Foat did appear as a witness, repudiated

  

1

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

(continued)

4

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

“Love.”

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.

(continued)

statement during his testimony. See also State v. Byrd

N.J. ____ (2009).

5

 

  

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

big.

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

6

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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

7

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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

that effect.

[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

trial.

[Prosecutor]: Are you suggesting,

counsel, the person with the biceps is a

family member?

[Defense Counsel]: No, I’m not.

[Prosecutor]: Okay, so that’s clear.

8

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[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

windows.

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

9

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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

reprisal.

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

10

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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

Honor.

[Prosecutor]: –in a muscle tee shirt.

THE COURT: Excuse me, [Prosecutor],

I’ve excluded that.

[Prosecutor]: Judge, it’s part of the

evidence.

[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

on.

11

A-3799-06T4

  

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.

Motion denied.

[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

12

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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.

[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

now.

[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.

C

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

13

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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

you.”

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

14

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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.

2

  

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.

 

  

2

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).

15

Although not raised by defense counsel on appeal, the State hasA-3799-06T4

  

II

The following issues were raised in Davis’s original brief

to this court:

POINT I

THE DEFENDANT RONNELL DAVIS WAS DENIED A

FAIR TRIAL BECAUSE JUROR #3 DID NOT DISCLOSE

HER RELATIONSHIP WITH AN ASSISTANCE

PROSECUTOR.

POINT II

THE PROSECUTOR’S COMMENTS WERE SO

PREJUDICIAL THAT THEY REQUIRE A REVERSAL.

A

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

trial.

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.

16

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[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.”

17

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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

Prosecutor’s Office.

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.

18

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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

issue.

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

19

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make the negative findings outlined above .

. . .

[Ibid.]

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

jurors.

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

20

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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

21

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criminal justice soundly insists

125, 134 (1954).

B

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

22

.” 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

statements.

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.”).

3

  

“[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

 

  

3

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.

23

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

1160 (1958)).

In the present case, the prosecutor not only provided

inappropriate testimony during Ellison’s direct examination, but

24

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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.”).

III

In conclusion, we find that, taken in the aggregate, the

errors discussed above deprived Davis of his fundamental right

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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.

 

 

APPELLATE DIVISION

DOCKET NO. A-3799-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONNELL DAVIS,

Defendant-Appellant.

_________________________________

Submitted March 11, 2009 – Decided

Before Judges Rodríguez and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment

No. 05-12-01571.

PER CURIAM

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

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