State v. Nelson

LaVECCHIA, J.,

concurring, in part, and dissenting, in part.

I concur in the judgment of the Court that reverses defendant’s death sentence based on error in the trial court’s handling of ambiguity in the verdict sheet. Because I do not view any of the other alleged trial errors to constitute a basis for reversal, I cannot join in Section III of the majority’s holding.

The majority declares improper the prosecutor’s references to one expert witness of defendant (Dr. Weiss) as “partisan,” and as “wearing the same color jersey as the other people on Leslie Nelson’s team,” and referring to another defense expert witness (Dr. Gelles) as “[going] over the edge a little bit.” Those comments are viewed as amounting to prosecutorial misconduct that so exceeded the bounds of propriety that defendant was denied a fair penalty trial. Because this is a capital case, the majority gives the benefit of the doubt to defendant. Arguably the capital setting of this matter will circumscribe future applications of the majority’s restrictive approach to an advocate’s fair comment on matters clearly in the record. That said, I respectfully dissent.

Although generally limited to commenting on the evidence and drawing reasonable inferences supported by the proofs, proseeu- *499 tors are expected to “make powerful arguments in summations to the jury ---- [and] are thus afforded considerable leeway in making closing arguments.” State v. Koskovich, 168 N.J. 448, 489 , 776 A.2d 144 (2001) (citing State v. Chew, 150 N.J. 30, 84 , 695 A.2d 1301 (1997)), cert. denied, 528 U.S. 1052 , 120 S.Ct. 593 , 145 L.Ed.2d 493 (1999); see also State v. Smith, 167 N.J. 158, 177 , 770 A.2d 255 (2001) (‘We have consistently recognized that prosecutors are afforded considerable leeway in their closing arguments.” (citations omitted)). As Justice Clifford observed in his widely cited dissent in State v. DiPaglia:

Criminal trials are emotionally charged proceedings. A prosecutor is not expected to conduct himself in a manner appropriate to a lecture hall. He is entitled to be forceful and graphic in his summation to the jury, so long as he confines himself to fair comments on the evidence presented.

[ 64 N.J. 288, 305 , 315 A.2d 385 (1974) (Clifford, J., dissenting) (citations omitted).]

It is beyond cavil that a prosecutor may not make inaccurate legal or factual assertions during a trial, nor are prosecutors permitted to “cast unjustified aspersions on the defense or defense counsel.” Smith, supra, 167 N.J. at 177 , 770 A.2d 255 (citing State v. Frost, 158 N.J. 76, 86 , 727 A.2d 1 (1999)). However, those limitations do not prevent a prosecutor from speaking frankly about the interest and bias of a defense witness. See State v. Timmendequas, 161 N.J. 515, 593 , 737 A.2d 55 (1999), cert. denied, — U.S.-, 122 S.Ct. 136 , 151 L.Ed.2d 89 (2001) (“It is not improper for the prosecution to suggest that the defense’s presentation was imbalanced and incomplete.”). As long as a prosecutor’s comments are based on the facts in the record and reasonable inferences that follow, “what is said in discussing them, ‘by way of comment, denunciation or appeal, will afford no ground for reversal.’ ” Smith, supra, 167 N.J. at 178 , 770 A.2d 255 (quoting State v. Johnson, 31 N.J. 489, 510 , 158 A.2d 11 (1960)). Thus, we distinguish between a prosecutor discrediting the motivation of defense witnesses based only on the prosecutor’s opinion without any support in the record, and a prosecutor’s comment to that effect when supported by inferences reasonably drawn from the record. Smith, supra, 167 N.J. at 177-78 , 770 A.2d 255 .

*500 In this case, the objeeted-to comments concerning the experts have support in the record. With respect to Dr. Weiss, the prosecutor asked him on cross-examination:

You considered yourself when you wrote the report part of a defense team in connection with this matter; is that right?

In response to that question, Dr. Weiss answered ‘Yes.” There was no objection to this question and answer at trial; moreover, defendant’s counsel referred to Dr. Weiss’s “team” testimony in his own closing. Nonetheless, the majority concludes that the prosecutor’s comment constitutes reversible error.

The majority also finds that despite the prosecutor’s reference to another defense expert, Dr. Gelles, as “very competent” and “very credible,” it was inappropriate for the prosecutor in closing to have suggested that Dr. Gelles inappropriately stretched his testimony when he described Officer John McLaughlin as “impulsive.” As with the prior comments discussed, there was a basis in the record to support that statement by the prosecutor, rendering the comment fair. During cross-examination of Dr. Gelles, the prosecutor elicited the concession that in fact Dr. Gelles had no idea whether McLaughlin raced to the top of the stairs “impulsively.” Dr. Gelles had asserted repeatedly that McLaughlin was unaware of the danger at the top of the stairs as he raced up toward defendant. In addition to the aforesaid concession, Dr. Gelles also conceded that he knew that McLaughlin had his hand on his weapon as he ran up the stairs. Perceiving contradictions in the expert’s testimony, the prosecutor did not engage in misconduct by suggesting to the jury in closing that Dr. Gelles might have gone “over the edge a little bit” in an effort to provide testimony favorable to defendant. I would not equate this prosecutor’s comments with “improper methods that result in wrongful conviction.” Smith, supra, 167 N.J. at 177 , 770 A.2d 255 .

The allegedly prejudicial comments in this case are not close to the boundaries of impropriety previously established by this Court. See State v. Rose, 112 N.J. 454, 518-19 , 548 A.2d 1058 (1988) (finding prosecutorial misconduct constituting reversible error where prosecutor, with no support in record, implied in *501 summation that expert’s testimony was fabricated or contrived with assistance from defense counsel). See also Frost, supra, 158 N.J. at 86 , 727 A.2d 1 (referring to prosecutor’s comments as improper for suggesting that defense counsel’s closing arguments were “lawyer talk,” and that defense counsel hoped that jurors had a “bad taste in [their] mouth towards [police] officers”); State v. Moore, 122 N.J. 420, 461-62 , 585 A.2d 864 (1991) (holding it improper for prosecution to refer to defense expert as “professional bleeding heart who was indeed duped by the defendant”); State v. Marquez, 277 N.J.Super. 162, 172 , 649 A.2d 114 (App.Div.1994) (declaring it improper for prosecutor to comment without basis that defendant’s attorney had scripted expert witnesses’ testimony), certif. denied, 141 N.J. 99 , 660 A.2d 1198 (1995).

The prosecutor did not refer to defense counsel in his summation and the majority stretches when reading into the criticism of the experts’ testimony a suggestion of improper conduct by defense counsel. That significant feature distinguishes this case from others that involved unfair and prejudicial prosecutorial comment, as does the fact that here there was a basis in the record for each of the prosecutor’s comments concerning both witnesses. The “team” descriptor used by the prosecutor concerning Dr. Weiss was brought into play by the witness himself. And, as noted, there was a basis in this record to call into question before the jury the reliability of Dr. Gelles’s testimony. The comments constituted neither bald opinions by the prosecutor, nor negative aspersions against defense counsel.

Lastly, I would note that the prosecutor’s summation comments about Dr. Sadoff, a prosecution witness, also were not inappropriate for contrasting his testimony with that of the defense experts. Dr. Sadoff had testified that he did not consider himself part of the “prosecution team” and that testimony was referenced by the prosecutor in his closing. The prosecutor was entitled to highlight that Dr. SadofPs testimony was balanced in response to summation comments by defense counsel that described Dr. Sadoff as “the prosecutor’s $400-an-hour psychiatrist.”

*502 The majority’s paring of the prosecutor’s ability to critique the record and to build argument inappropriately circumscribes the prosecution’s capability to forcefully and fairly state its case based on the record and the reasonable inferences to be drawn therefrom. I cannot join in the majority’s holding that this case presented a circumstance where an unjust verdict occurred as a result of prosecutorial misconduct. Thus, I respectfully dissent.

Justice COLEMAN joins in this opinion.

For reversal and remandment — Justices STEIN, COLEMAN, LONG, LaVECCHIA and ZAZZALI — 5.

For concurrence — Justices LONG and ZAZZALI — 2.

Concurring in part; dissenting in part — Justices COLEMAN and LaVECCHIA — 2.