Tailor Unmade
A criminal conviction has been vacated by the New Jersey Appellate Division based on an improper closing argument by the prosecutor
We vacate the conviction because the prosecutor made prejudicial statements during summation suggesting defendant had tailored his testimony based on what he heard while exercising his fundamental rights to attend the trial and confront the witnesses against him, thereby depriving defendant of a fair trial. We remand the case for a new trial. For the sake of completeness, we considered and reject defendant’s remaining arguments regarding his convictions. In the unpublished portion of this opinion, we conclude that had we not set aside his convictions, we would have remanded the case for resentencing because the court did not sufficiently analyze the appropriateness of the imposition of the consecutive sentences under State v. Yarbough, 100 N.J. 627, 643-44 (1985), or the overall fairness of the sentence under State v. Torres, 246 N.J. 246, 268 (2021).
The crime
At the trial, the victim testified that on December 24, 2021, she was working as a prostitute at a hotel in Parsippany. She identified defendant as a 10 A-3424-22 client whom she had met that day in the hotel room. She testified that when he arrived, defendant asked her if she were alone and if she were a police officer and then went into the bathroom and opened the curtain. According to the victim, defendant paid her $150, which she placed under a hotel telephone, and she consensually attempted to perform oral sex on defendant. She testified that when his penis “would not perform,” she had told defendant she “could not continue working with him” and he responded, “okay, no problem.”
According to the victim, after defendant got dressed, he pulled a black and brown pistol on her, told her to give him her money, and looked around the room for the money. She also stated he had told her to “keep quiet,” turned the room for the money. She also stated he had told her to “keep quiet,” turned up the volume on the television so no one could hear her, unplugged the hotel telephone, and placed her cell phone on airplane mode. She testified defendant, with one hand holding the gun and the other hand grabbing her head, forced her to perform oral sex on him twice without a condom and then used his fingers to “check[] around [her] vagina . . . to see if [she] had money inside [her] vagina.” She stated he ultimately found approximately $500, which included his payment to her, she had placed under the hotel room telephone. According to the victim, before he left, defendant took a photograph of her identification and told her not to leave the room for five minutes. After he left, she called the hotel front desk and law-enforcement officers subsequently came to her room.
There had been no objection to the prosecutor’s closing, triggering a plain error analysis
The prosecutor could have challenged defendant’s credibility using evidence in the record. But that’s not what she did. Instead, she impermissibly attacked his credibility based on his exercise of his fundamental rights to attend his trial and confront the witnesses presented against him. The comments made by the prosecutor in her summation in this case are indistinguishable from the improper comments made by the prosecutor in Daniels. Like the Daniels prosecutor, the prosecutor in this case highlighted that defendant had “sat through this entire trial, hearing the testimony of every witness” and testified “after he heard all of the evidence against him, after having time to construct a new narrative.” The prosecutor told the jury, “[w]hat he told you was just a story, a story of having consent . . . .”
The prosecutor’s comments were not about an inconsequential matter but went to the core of defendant’s case. The prosecutor directly and without question overstepped the clear boundaries of acceptable vigorous advocacy set by the Court in Daniels, depriving defendant of a fair trial. The Daniels Court held “the prosecutor may not refer explicitly to the fact that the defendant was in the courtroom or that he heard the testimony of other witnesses, and was thus able to tailor his 25 A-3424-22 testimony.” Id. at 99. Despite that prohibition, that is exactly what the prosecutor did in this case. She explicitly referenced defendant sitting “through this entire trial,” “hearing the testimony of every witness,” and testifying “after having time to construct a new narrative.” The court did not provide any specific instructions to disregard the prosecutor’s comments. And like the charge in Daniels, the trial court’s generic instructions that counsels’ statements were not evidence did not cure the harmful effects of the prosecutor’s improper comments. Following Daniels, we are constrained to vacate the convictions in this case and remand the case to the trial court for further proceedings, including a new trial.
(Mike Frisch)