# State v. Rose > Supreme Court of New Jersey · September 22, 1988 · 112 N.J. 454 URL: https://www.frixlaw.com/law-library/cases/9727578 ## Case - **Full name:** State of New Jersey, Plaintiff-Respondent, v. Teddy Rose, Defendant-Appellant - **Court:** Supreme Court of New Jersey - **Decided:** September 22, 1988 - **Citations:** 112 N.J. 454; 548 A.2d 1058; 1988 N.J. LEXIS 99 - **Precedential status:** Published - **Opinion:** Concurrence by Clifford - **Judges:** Clifford, Wilentz, Handler - **Cited by:** 136 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9727578 ## How later opinions describe it (automated extraction) - finding reversible error in prosecutor's summation in which he argued that the defense expert's testimony was fabricated, extolled the jury to "send a message" by sentencing defendant to death, stated, without evidentiary support, that defendant extorted food from other inmate… - concluding that that type of argument is "improper and prejudiced defendant's penalty-phase proceeding," where the prosecutor "urg[ed] the jury to sentence defendant to death in order to deter him from future acts of violence and to `send a message' to society that conduct suc… - holding that trial court should have given limiting instruction to jury when inflammatory evidence of defendant's bigoted remarks was admitted to demonstrate defendant's intent, and that evidence should have been excluded, in any case, under Evidence Rule 4 - explaining that a question in cross-examination is improper where "no facts 31 A-0536-18 concerning the event on which the question was based were in evidence and the prosecutor made no proffer indicating his ability to prove the occurrence" ## Opinion text CLIFFORD, J., concurring. I agree with Justice Handler that the prosecutor’s excesses in his summation on the guilt phase of the case were most offensive, sometimes egregious, such that I would not hesitate to vote to reverse the guilt conviction for that reason alone were I to conclude that that conduct deprived defendant of a fair trial. See State v. Koedatich, 112 N.J. 225, 341 (1988) (Clifford, J., dissenting). Bad as it was, however, the prosecutor’s performance was rendered largely inconsequential on the question of guilt by the ready acknowledgement of defense counsel in his summation that his client was guilty of knowing or purposeful murder. Here is how the case shaped up by the time of the summation on guilt: the court had informed counsel that the defense’s request for a charge on aggravated manslaughter would be denied. (I concur with the majority’s favorable disposition of that ruling. Justice Handler disagrees. That disagreement on the “aggravated manslaughter” issue is at the heart of our divergence of views on this, the prosecutorial conduct, point. I *548 concede that if Justice Handler were right on the former — as I think he is not, for all the reasons so persuasively set forth in the Court’s opinion — then he would be right on the latter.) Therefore, the only options open to the jury were to convict of knowing or purposeful murder or to acquit. The strength of the State’s case was such that defense counsel could not mount a respectable argument for acquittal, and therefore chose not to present some kind of silly argument that would run the risk of irritating the jurors, and decided instead (probably wisely, albeit unsuccessfully) to treat the guilt-phase summation as a “dry run” of his penalty-phase plea. His purpose was transparently not to gain an acquittal but rather to condition the jurors for what was to come: a subsequent proceeding in which he would argue against imposition of the death penalty. That becomes clear when one examines the transcript of defense counsel’s guilt-phase summation, pertinent portions of which follow: Normally a summation is the time when a defense attorney is supposed to emphasize to you certain facts that he would like you to consider during your deliberations and make an argument to you to try to persuade you that his client or her client is not guilty of the charges against him. I’m not going to do that. At least I’m not going to try to persuade you that Teddy Rose isn’t guilty because he is guilty. As Mr. Marucci said earlier, Teddy Rose killed Officer Garaffa and there is no disputing that evidence. We have never disputed it. Teddy Rose has never disputed it. He doesn’t seek to deceive you. He doesn’t seek to deceive anyone or misrepresent anything regarding what happened. He doesn't try to avoid responsibility for his actions. You know what the consequences are. You know that a finding of guilty of purposeful or knowing murder forces us to go to a penalty phase where the alternatives are either life imprisonment with SO years at least without parole or the death penalty. It’s difficult for him to admit that, it’s difficult for us to concede it and perhaps for you to accept it, to accept those will be the only options available to you but it’s also difficult to accept that Teddy Rose killed a man and this is true but there are facts in evidence which I would like to emphasize to you because I think it’s important for you to keep certain things in mind during your deliberations, however short your deliberations may be. ******** The shooting just happened in seconds because Teddy Rose knew that he was about to get arrested for having that gun, the gun which he knew was illegal *549 for him to have and we know he didn’t just decide to kill a cop, this one or anyone else. Teddy Rose didn’t stalk a police officer and kill him or scour the city looking for this particular police officer. Teddy Rose was going home. We know when this particular police car pulled up what did Teddy Rose do? He waved. You don’t wave at a police officer if killing that police officer is what’s on your mind. Killing Officer Garaffa was not on Teddy Rose’s mind. That couldn’t be more clear from the testimony you heard. This was an instant split second decision done with little or no thought, it was a stupid impulsive irrational decision. This isn’t to say that he’s not guilty. Killing somebody impulsively in panic is not an excuse and not a justification. The killing of Officer Garaffa can never be excused or justified but there’s an explanation and this killer [sic: killing] cries out for an explanation. Before you return your verdict we ask only that you think about it first. Think about what Mr. Marucci and I and the evidence emphasizes to you, the speed with which this happened, the impulsive unplanned, unthinking nature of this act in Teddy Rose’s irrational bizarre fear at being arrested. The evidence the Prosecutor presented satisfies the requirements of the law Judge Degnan will define to you. As Pve said we do not dispute that so go ahead and return your verdict the Prosecutor asks. We’ll see you at the second part [the penalty phase] of this trial. At that time we’ll answer the questions which we know you must have. The answers are there and they will show not that Teddy Rose is an evil monster but that he is indeed different. His actions are not justifiable. Understanding his life is significant and critical to what happened on August 8th, 1984 and he’s a human being whose life need not be sacrificed. [Emphasis supplied.] Given the defendant's ready concession of guilt, I would have to find the excesses of the prosecutor harmless beyond a reasonable doubt as they affected guilt. Not that that conduct was excusable — it was not, and possibly it should be dealt with in some other forum. See State v. Ramseur, 106 N.J. 123, 323-24 (1987). I agree, of course, with the Court’s appraisal of the prosecutor’s remarks in the penalty phase and of the disposition occasioned by those remarks. I would add only that the prosecutorial improprieties in the guilt-phase summation acted as an accelerant to the fire produced by the penalty-phase excesses. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9727578. Public record. Not legal advice.