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Another Look at Prosecutorial Misconduct by the Appellate Division

In State v. Murphy, decided on April 22, 2010, the Appellate Division held that a Monmouth County trial court erred by permitting a prosecutor to use a seventeen year old conviction to impeach a defendant and by allowing the prosecutor to vouch for the credibility of one of the State's witnesses.  Prosecutorial misconduct is an issue that a New Jersey criminal defense lawyer should always be looking for in order to ensure that their client receives a fair trial.  As this case illustrates, from time to time, prosecutors cross the line from zealous advocacy to misconduct.

In this case, two Asbury Park police officers, Carrasquillo and Love, were conducting surveillance near the Asbury Park train station.  They observed a man, later identified as the defendant in this case, stop his bicycle next to another man, known as Crimi, who had flagged him down, take some currency from the man and put it in his pocket, and then ride off on his bicycle.  The officers did not observe defendant hand anything to the man in exchange for the currency.  After observing him for some time, the officers approached Crimi and began to question.  While they were questioning Crimi, they observed defendant pedaling back towards them.  Officer Carrasquillo testified that, as defendant was approaching the officers, he dropped something on the ground from his  coat pocket, which was later identified as cocaine.

Defendant's testimony regarding the encounter was very different from the officer's testimony.  Defendant testified that he knew Crimi, and that he and Crimi combined their money to purchase beer.  As defendant was riding towards Crimi, he observed the officers questioning him, and so he stopped to hide a can of beer so that he would not be arrested for being in possession of an open container of beer.  He then continued riding towards the officers and Crimi to see what was happening.  Defendant denied being in possession of any cocaine.

Defense counsel argued that the officer's version of events was not credible because no person who had cocaine in their possession would ride towards two men with badges around their necks and the word "Police" written in large yellow letters on the fronts and backs of their shirts.  Defense counsel also argued that it does not make sense that someone would drop cocaine on the ground when they are four feet away from a police officer.  During her summation, the prosecutor responded to these arguments by saying: "Officer Carrasquillo is an Asbury Park police officer who has no outcome - or no stake in the outcome of this proceeding, whereas the defendant clearly does."  Defense counsel objected to this statement, but the Court allowed the statement.

On appeal, defendant argued that it was improper for the prosecutor to tell the jury that the officer had no motive to lie, and therefore, by allowing the prosecutor to say that, the defendant was deprived of a fair trial contrary to the Fourteenth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey State Constitution.  In a prior case, State v. R.B., the New Jersey Supreme Court had held that it is improper for a prosecutor to contend in summation that the police had no motive to lie.  Therefore, it was clear in this case that the statement made by the prosecutor in summation was improper.

In order for a court to determine whether to give the defendant a new trial when an improper statement is made, the court must apply a three-prong test.  First, the court must consider whether defense counsel made timely and proper objections to the impr0per remarks.  Second, the court must consider whether the remarks were withdrawn promptly.  Third, the court must consider whether the trial judge ordered the remarks stricken from the record and instructed the jury to disregard them.  In this case, defense counsel did object to the comments, and not only did the trial judge not order the remarks stricken from the record, but he stated in open court that the remarks were a "fair comment."  Therefore, the appellate court held that defendant should be given a new trial.

In addition, in this case, the trial judge permitted the State to impeach the defendant's testimony with a prior conviction for possession of a controlled dangerous substance.  However, the prior conviction was seventeen years old and defendant had not had any convictions since that time.  The appellate court recognized that passage of time alone was not sufficient to prohibit a prosecutor from using a prior conviction to impeach a defendant who decides to testify.  Other factors that should be considered are the seriousness of the prior crime, whether the prior crime involved dishonesty, as well as whether the defendant has any intervening convictions.  The appellate court concluded that the probative value of the prior conviction in this case was substantially outweighed by the prejudicial effect to the defendant, and therefore use of the prior conviction for impeachment should not have been permitted.  Therefore, the appellate court concluded that this was an additional ground for granting defendant a new trial.

This case illustrates that, at times, prosecutors will cross the line from advocacy to misconduct, and a New Jersey criminal defense lawyer should be ready to point out any misconduct to the trial judge.  In order to make sure that their rights are protected, anyone charged with a crime in New Jersey should contact a New Jersey criminal defense lawyer for advice and representation.