State v. Williams, ___ N.J. ___ (2021). In this case, defendant, accused of robbing a bank, was convicted of second degree robbery. That crime requires force or the threat of force, putting a victim in fear of immediate bodily injury. Third degree theft, which does not have that same requirement and carries a lesser sentence, was charged as a lesser included offense.
Defendant approached a female teller’s window and bent down to address the teller (defendant is over six feet tall, while the teller according to the testimony at trial, was about 5’2″. He was “pretty much on top of the metal gate” that separated him from the teller. He passed her a note that said “Please, all the money, 100, 50, 20, 10. Thank you.” The teller then began to shake visibly. She began giving defendant money, but when she tried to include a pack of $20 bills that contained a GPS tracker, defendant said (“forcefully,” according to the Supreme Court’s opinion) “No, leave that there.” The teller complied, defendant left the bank with the money that the teller had given him, and the teller “started crying and shaking.”
Defendant never displayed or tried to reach for a weapon. But the teller testified that, still, she was “very scared.” She “didn’t know what he could have in his pockets.”
To make the case that the teller had been in fear of immediate injury, the State emphasized the theme of “actions speak louder than words” during the trial. As part of that strategy, the State included in its summation a slide with that phrase in capital letters. But the slide also featured a picture of Jack Nicholson from the movie The Shining in which he has tuck his head through a broken door (he had broken through the door with an ax)
The prosecutor told the jury that “[t]his guy looks creepy and he’s saying some very unthreatening words. ‘Here’s Johnny’ [a trademark phrase from NBC’s Tonight Show that was used to introduce its then host, Johnny Carson, as the Supreme Court’s opinion noted]. But if you have ever seen the movie The Shining, you know how his face gets through that door. So, again, I just point that out to illustrate. It’s not just the words; it’s what you do before and what you do after the words that matters. And that’s what makes this a robbery.”
Defendant’s counsel objected to the slide and the prosecutor’s remarks. The trial judge offered to give a curative instruction, but after the judge added that if that were done, it would underscore the prosecutor’s argument, “a double-edged sword,” defense counsel said “it may be best left alone.” The jury found defendant guilty of robbery.
Defendant appealed, contending that the slide was so inflammatory and irrelevant to the facts that it deprived him of a fair trial. The Appellate Division found no prosecutorial misconduct in what occurred. Defendant then obtained Supreme Court review, and the Court reversed in a unanimous opinion by Justice Solomon.
In the Supreme Court, the State conceded that the prosecutor had erred in using the picture from The Shining. But the State contended that that error was harmless. Justice Solomon, himself a former prosecutor, did not agree. He noted that prosecutors have a dual role: “represent[ing] vigorously the state’s interest in law enforcement and at the same time help[ing] assure that the accused is treated fairly and that justice is done.” Thus, a prosecutor “may strike hard blows, [but] not … foul ones.”
After carefully analyzing four prior cases about what has or has not constituted prosecutorial misconduct, Justice Solomon found that the circumstances here did rise to that level. The prosecutor had asked the jury “to draw an inference reinforced by a disturbing photograph not in evidence” and not reasonably related to the evidence actually offered or to any legitimate inferences from that evidence. And unlike in The Shining, “no act of physical violence” preceded defendant’s handing of the note to the teller. It was fundamentally unfair to stray “far beyond the evidence at trial to draw a parallel between defendant’s conduct and that of a horror movie villain.”
The fact that defense counsel did not request a mistrial and declined a curative instruction did not save the day for the State. That fact was to be considered, but they did not, when viewed in the overall context of a case that was a “close call,” lead to affirmance of the robbery conviction.
Finally, defendant suggested that the Court adopt a rule requiring prosecutors to supply any proposed PowerPoint presentations in advance of opening or closing statements in which those presentations would be offered. The Court declined to do that, noting that “the State is under no duty to announce to the defense each inference it will ask the jury to reach during summation.” But Justice Solomon did “encourage counsel” to disclose in advance visual aids to be used during closing arguments.
The Court reversed the robbery conviction and remanded for a new trial.