SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3903-99T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ARMANDO NEGRON,
Defendant-Appellant.
___________________________________
Submitted: October 2, 2002 - Decided: December 11, 2002
Before Judges Kestin, Fall and Weissbard.
On appeal from the Superior Court of New Jersey,
Law Division, Criminal Part, Middlesex County,
97-9-1187-I.
Yvonne Smith Segars, Public Defender, attorney
for appellant (Jacqueline E. Turner, Assistant
Deputy Public Defender, of counsel and on the
brief).
Peter C. Harvey, Acting Attorney General, attorney
for respondent (Jeanne Screen, Deputy Attorney
General, of counsel and on the brief).
The opinion of the court was delivered by
KESTIN, P.J.A.D.
Defendant, Armando Negron, was convicted by a jury of murder,
N.J.S.A. 2C:11-3a(1), (2), and possession of a weapon for unlawful
purpose, N.J.S.A. 2C:39-4a. These convictions occurred in a second
trial after the jury in an initial trial was unable to reach a
verdict. On sentencing, the trial court merged the convictions and
imposed a prison term of seventy-five years subject to the
provisions of N.J.S.A. 2C:43-7.2, requiring service of eighty-five
per cent of the term before defendant would be eligible for parole
and subjecting him to five years of parole supervision upon
release. Appropriate provision was made for the imposition of
statutory assessments, penalties and fees, and of other conditions.
On appeal, defendant raises the following issues:
POINT I BECAUSE THERE WAS INSUFFICIENT
EVIDENCE PRESENTED TO PROVE THAT
ARMANDO NEGRON KILLED LAZARA CUNHA, THE
DEFENSE MOTION FOR A JUDGMENT OF ACQUITTAL
SHOULD HAVE BEEN GRANTED.
POINT II THE TRIAL JUDGE ERRED IN REFUSING TO
GRANT THE DEFENSE REQUEST FOR A
MISTRIAL AFTER THE PROSECUTOR
REPEATEDLY DISPARAGED DEFENSE
COUNSEL AND THE EXPERT WITNESSES WHO
TESTIFIED.
POINT III THE DEFENDANT'S SENTENCE IS
EXCESSIVE.
We reverse on the basis that defendant was denied a fair trial by
the prosecutor's conduct of the State's case.
The victim, Lazara Cunha, was murdered on August 12, 1998.
Defendant and Cunha worked in the same office in New Brunswick.
They had been friends for several years and often lunched together.
Cunha was in her fifties and was married. Defendant was in his
thirties and was single.
A number of their co-workers testified at trial concerning the
relationship. According to one, because of the difference in their
ages Cunha had taken defendant "under her wing" and they seemed to
have "a mother/son relationship." Another co-worker testified that
defendant had expressed a sexual interest in Cunha. A third co-
worker testified that defendant had stated that Cunha had been
making advances toward him. Some co-workers stated that, in the
months before the murder, Cunha's relationship with defendant
changed__they were no longer close and Cunha seemed to distance
herself from defendant.
On the day of her death, at about 8:30 a.m., Cunha, appearing
upset, told a fellow employee that she was going to follow
defendant to a gas station to leave his car for repairs and drive
him back to work. Defendant had been seen by other employees
before 8:00 a.m. sitting in his car in the office parking lot.
Another employee saw Cunha's beige Jaguar leave the parking lot
just after 8:30. At about the same time, two other fellow
employees on their way to work saw defendant pacing on the pavement
near an intersection down the street from their place of
employment, with his car, a red Suzuki, nearby. Defendant declined
their offer of assistance.
A few minutes later, a driver passing by saw a woman seated
behind the wheel of a Jaguar. Her head was moving and she was
apparently conversing with a man standing at the driver's-side
window. A few minutes after that, other witnesses saw a man, later
identified as defendant, looking into a gold Jaguar parked at the
curb in the same location, and then returning to a red car parked
nearby. One of those witnesses testified that she first saw
defendant looking into the driver's side of the Jaguar, running to
the front of the car and looking inside through the windshield, and
returning to his position at the driver's-side window. Then, he
ran to a red jeep-type vehicle parked in a driveway and entered it.
That witness described defendant as running the entire time, as if
panicked or in a rush. Two other witnesses saw the Jaguar moving
erratically, slowly gliding and then coming to a stop near the
driveway. One of them testified that the Jaguar's emergency
flashers were lit. Photographs later taken at the scene by the
police showed the Jaguar squarely parked at the curb.
A few minutes later, Cunha was discovered by a passerby,
sitting in the driver's seat of the Jaguar, wearing her seatbelt
and slumped over the steering wheel. The Jaguar's engine was
running, its right blinker was on, and Cunha was bleeding profusely
from facial injuries.
The police were summoned. They determined that Cunha had been
shot in the head and was dead. It appeared that no robbery had
occurred, as none of her belongings were disturbed.
When immediate investigation disclosed that Cunha had left
work to meet defendant at the gas station, the police went to his
home in Newark. He was not there, but his car was located at his
sister's home at another Newark address.
The day following, defendant called his sister from Toledo,
Ohio. A week later he surrendered to the police at Newark Airport
after disembarking from a flight from Puerto Rico.
Although many witnesses testified to the circumstances
surrounding Cunha's murder and facts bearing upon her relationship
with defendant, some placing defendant in the vicinity of Cunha's
vehicle at around the time of her death, there were no witnesses to
the actual homicide and none had heard a gunshot. With the
exception of a single character witness, defendant presented no
fact witnesses. The State's theory was that defendant, spurned by
Cunha, had shot her while standing beside her car. Defendant's
theory was that Cunha had been shot by someone else while driving
and was discovered by defendant in her injured condition. Expert
witnesses on behalf of the State and defendant provided conflicting
hypotheses supporting the respective theories of the case based on
scientific analyses regarding the circumstances of the death. The
focus of much of that testimony was whether Cunha could have been
shot before her vehicle came to rest where found.
The State's medical expert was the State Medical Examiner, Dr.
Faruk Presswalla, a forensic pathologist with extensive experience
in that field. Dr. Presswalla testified that the cause of death
was a gunshot wound to the left side of Cunha's head above and
behind the ear, which traveled toward the right in a downward
direction, entering the skull and penetrating the brain, shattering
the brain stem and fracturing the base of the skull, and lodging
under the skin of the right cheek from where it was recovered.
According to Dr. Presswalla, the brain stem injury immediately
rendered Cunha unconscious with no ability for voluntary movement
or motor function beyond small involuntary twitches. He concluded
that the shot came from outside the driver's-side window, which was
either partially or completely open since the bullet did not go
through the glass. Gunpowder residue and particle lead found on
Cunha's shirt indicated that the shot had been fired at an
intermediate range, from a distance of about three feet.
Dr. Abbott Krieger, a professor and neurosurgeon with
extensive practice and research experience in brain injuries,
testified as a medical expert for the defense. In support of the
thesis that Cunha had already been injured when defendant was seen
at the side of her car, he opined that Cunha had been shot while
operating her car causing her to drive erratically. He stated that
a person who was severely brain injured and unconscious could move
his or her arms and legs and even turn his or her head in reflexive
motion.
Another defense expert, Dr. Ira Kuperstein, a forensic
engineer, provided supporting opinion for the thesis that Cunha
could have driven after having been shot. Based on the location of
one of the State's witnesses, Dr. Kuperstein also questioned the
ability of that witness to have discerned some of the detail
provided in his testimony.
Because no one had witnessed the actual homicide and because
there was no direct scientific evidence connecting defendant to the
crime, the jury was left with the task of determining whether the
circumstances established were an adequate basis for finding beyond
a reasonable doubt that defendant had murdered the victim. In the
face of the testimony placing him at the scene around the time of
Cunha's death and providing some evidence of motive, defendant had
offered his theory that Cunha had been shot by someone else while
driving and that her vehicle had come to rest at the location where
defendant had parked his car. Despite testimony that tended to
establish that Cunha had intended to follow defendant from their
office's parking lot to a nearby service station, no one saw them
leave the parking lot together. Indeed, although one witness
placed defendant in his car in the parking lot before 8:30 a.m.,
others saw him alone shortly after 8:30 a.m. at the location where
Cunha's body was found. Thus, there was some basis in the evidence
for the jury to conclude that Cunha had driven to that location
while defendant waited there, and to use that inference to support
either the State's theory or defendant's.
Accordingly, the conflicting testimony of the respective
experts, especially the medical experts, became a critical element
in the case. If the jury accepted Dr. Presswalla's opinion that
Cunha was incapable of propelling her car from the roadway to the
curb once shot, it might well conclude that she had pulled the car
to the curb before being injured and that defendant had shot her.
If, on the other hand, Dr. Krieger's contrary opinion__as fortified
by Dr. Kuperstein's physical depictions__regarding the decedent's
physical capacities after sustaining the wound inflicted were to be
accepted, the jury might well be inclined to find reasonable doubt
regarding defendant's guilt. If the choice were to be seen as
close, the trial might have as unsatisfactory a result as had
occurred in the previous trial of the same charges, where the jury
was unable to reach a unanimous verdict.
In this context, the prosecutor embarked on a conceptually
allowable effort to discredit both the credibility of defendant's
experts as well as the substance of their testimony. He did so,
however, in ways that exceeded the bounds of fairness, with the
result that the trial was infected with the same shortcomings as
were found to have existed in State v. Smith,
167 N.J. 158 (2001).
We set aside numerous instances of quibbling, argumentation,
baiting and contentiousness in the prosecutor's cross-examination
of Dr. Krieger, some of which earned the prosecutor well-deserved
censure by the trial judge. We concentrate primarily upon the
instances of Smith-type prosecutorial excess and other similar
tactics which the testimonial record reveals.
They began with a focus on several malpractice cases in which
Dr. Krieger had been one defendant and which had resulted in
sizeable settlements for the claimants. The prosecutor referred to
the fact that Krieger was licensed in several states and had been
chief of neurosurgery in several different hospitals, inquiring:
"You wouldn't be jumping around from state to state and hospital to
hospital because of all the mistakes you've been making, right?"
The witness responded that his presence in New Jersey for twenty-
five years was not jumping around.
Then, after summarizing the different theories propounded by
Drs. Presswalla and Krieger, the prosecutor turned to concentrate
on the fee charged by Krieger for his services as an expert. The
trial transcript reveals the following:
Q Doctor, let's get to the real
difference between you and Presswalla, okay?
A I thought that was the real
difference.
Q What's your standard fee for
testifying as an expert witness?
A Sixty-five hundred dollars.
Q If I told you Dr. Presswalla
doesn't get paid to testify, certainly not
$6500 a shot, would you disagree with me?
A I don't know what he's getting paid.
Q He's employed by the State as
the Chief Medical Examiner for the State.
[DEFENSE COUNSEL]: That's
inaccurate.
THE COURT: That's not a question
first of all. It's testimony.
[DEFENSE COUNSEL]: He does get paid
out of State. [sic] It's inaccurate.
THE COURT: The objection is
sustained. Don't argue with the witness and
don't make comment. Ask questions.
Q What's your standard fee?
A My standard fee is $6500.
Q And that's to put together like
you did in this case a three-page report and
come in here and share your views for a couple
hours and then go home, correct?
A No, that's not correct. It's really
_
Q In this case _
THE COURT: Let him finish his
answer.
A (Continuing) I'm reviewing all the
medical records provided to me, having several
conferences with [defense counsel], appearing
in court, freeing up my time to be here. In
fact, in this trial I'm not charging my
standard fee.
Q You're cutting it down?
A I'm charging less.
Q Because things are tough with
you. Because your medical malpractice keeps
going up every time you screw up, isn't that
right?
A No. The reason why _
[DEFENSE COUNSEL]: Objection,
judge. There's no foundation for that
question.
THE COURT: Objection sustained.
THE WITNESS: Can I answer the
question?
THE COURT: I'm going to let you
answer the question after I give counsel an
instruction.
One, let the witness finish the
answers. I understand you have a number of
questions. I understand this is vigorous
cross examination. I have no problem with
that. You must let the witness answer the
question before you begin your next question;
and don't argue with the witness. Go ahead.
[THE PROSECUTOR]: I would then ask
you to instruct the witness to answer my
question. I would ask you to instruct the
witness to answer my question and not lecture
on tangencies.
THE COURT: When that occurs I will.
Go ahead, you can answer.
A The reason I was willing to testify
for less than half my fee is because I felt so
strongly that the understanding of the
physiology was being completely misstated and
I really felt an obligation, a civic
obligation, to come in here and to explain to
the jury what happens physiologically so that
when they make their decision at least they'll
make it on the basis of all the information
and understanding what the physiological
disruptions of the brain do in terms of
clinical functioning. I wanted to make that
very clear and explain it and that's why I'm
here.
Q You know that's not true
because you know you could not get your
standard fee. It was reduced for reasons
known to you, me, and [defense counsel].
A And I could have walked away.
THE COURT: Wait a minute. That's
not a question.
Ladies and gentlemen, there's no
evidence before you that there was a reduction
in the witness' fee for any reason whatsoever.
It's simply not before you. That's a
gratuitous statement. It's one of those
gratuitous statements I've been referring to
during the entire course of this trial and you
are to disregard it.
[THE PROSECUTOR]: Judge, are you
aware of how this witness is being paid?
THE COURT: You are not asking
questions of me. You're posing questions to
the witness. Would you like me to address
that with you at side bar?
[THE PROSECUTOR]: Yes, I would.
THE COURT: Come on.
(The following is a discussion at
side bar:)
THE COURT: There is no evidence
before this jury by a witness as to what
reductions, if any, occur in the payment of
this witness. You are not a witness. You're
not permitted to testify. I'm sick of these
gratuitous statements. Do you understand?
[THE PROSECUTOR]: Yes, but let me
explain.
THE COURT: Let's go back on the
record.
[THE PROSECUTOR]: I need to make a
record.
THE COURT: Let's go.
(End of discussion at side bar.)
Q Your bill in this case was
scrutinized, was it not?
A I don't know.
Q You haven't submitted it yet?
A No.
Q Twenty-nine hundred dollars for
your civic duty, that's what it's worth?
A That's what I am going to submit for
my bill.
THE COURT: I didn't hear the end of
the answer.
That's what you're going to submit
to...
THE WITNESS: For my bill.
Q You had to stumble on that. It
probably hurts you to have to charge so low,
correct?
A You're making me nervous. That's
why I'm stumbling. I came here _
Q Sixty, 50, you've testified
however many times as an expert, correct?
A That's right.
Q This is not the first time
you're on the stand, correct?
A Well, I have _
Q Correct? That calls for a yes
or no.
THE COURT: Can you answer the
question with a yes or no?
THE WITNESS: No. I have to explain
it.
[THE PROSECUTOR]: That this is not
his first time on the stand.
THE COURT: He says he can't answer
it with a yes or no answer. That's his
answer.
[THE PROSECUTOR]: I'll withdraw the
question. We'll move on.
Q What makes you nervous, doctor,
is that you are distorting the facts in this
case to come up with your silly opinion, isn't
that what makes you nervous?
A No.
Q Well, I'm going to give you a
golden opportunity to explain how it is you
think it's reasonable within a medical degree,
your opinion. . . .
Whereupon, the cross-examination continued with inquiry into the
bases of Dr. Krieger's opinions.
The prosecutor, gratuitously, continued his attack on Krieger
even in beginning his qualifications voir dire cross-examination of
Dr. Kuperstein:
Q Unlike Dr. Krieger's[,] your
resume is short and sweet?
A Yes. One page.
Q The way it's supposed to be,
right?
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
And then, in resuming the delayed continuation of his cross-
examination of Dr. Krieger, the prosecutor took another tack in his
assault on Krieger for the fact that he was receiving fees for his
services as an expert:
Q If I told you [one of the fact
witnesses] got zero cents to come in here and
testify compared to your $2900 do you think
that would make a difference as to whether she
was coached or whether she embellished or
whether she stretched the truth as you're
referring?
A I think that all witnesses come
without any compensation.
Q Not you, sir?
A Well, I'm an expert and experts are
a different category.
Q I thought you were here for
your civic obligation as you testified to.
Isn't that what you said?
A Mr. Prosecutor, _
Q Mr. Neurosurgeon.
A --humiliating me does not change the
facts or the medicine. We're talking about
the specific cases and you then when you don't
like my answers you humiliate me.
Q I don't mean to humiliate you.
You're saying this woman put a spin on her
testimony, correct?
A Yes, I am. I'm saying it based upon
reading the two documents and seeing the
refinement of the second testimony compared to
the first. That has nothing to do with being
paid or not. That has to do with just making
that type of observation in terms of what the
witness said on two occasions.
Q You're an expert witness and
you know things of that sort, is that it?
A Well, I have the benefit of
reviewing both sets of testimony.
Q You've also had the benefit of
talking to any of the witnesses on the witness
list. Did you do that?
A No, I did not.
Q So really you're just passing
your judgment on these good people who came in
here to testify because in your view there's a
refinement in their transcript now, correct?
A I'm just making a comment upon
having read both of them and pointing out the
differences that are very obvious in both sets
of testimonies. That's all I'm doing.
Q Could it be that the questioner
was more refined in his questions?
A In some ways you were more refined
in your questioning but still the answers were
really very, very much more refined and I'm
sure if the jury had the opportunity of
reading both they would come to the exact
level, the same conclusion.
[THE PROSECUTOR]: I would ask you
admonish the witness for that comment.
THE COURT: You opened this door.
[THE PROSECUTOR]: No, I didn't.
THE COURT: Yes, you did. You
opened the door by asking this witness to
characterize another witness' testimony.
[THE PROSECUTOR]: I think he did
that all by himself.
THE COURT: This was absolutely
foreseeable.
You want to start and pursue another
line of questioning?
The prosecutor's endeavor to impugn the integrity of
defendant's experts with undue concentration on the fees they were
charging for their services continued in the cross-examination of
Dr. Kuperstein. Having established Kuperstein's hourly rate, the
prosecutor, after cross-examining him regarding his theories of the
case, concluded:
Q It's five minutes to twelve,
right?
A Yes.
Q You've been here since nine
o'clock?
A I got here a few minutes before
nine.
Q Three hours at $325.00 an hour
equals almost a thousand dollars for your
testimony today, correct?
A No. I charge for my time and it's
$3.20 [sic] an hour.
Q So $3.20 times three is
$960,00. [sic]
A Correct.
Q Yesterday you were here all
day?
A Yes.
Q How many hours is that?
A Eight.
[THE PROSECUTOR]: May I have a
black marker?
Q So yesterday was eight hours_
A I'd have to check. It's either
eight or nine because I did some preparation.
There's travel time.
Q You bill for travel time, of
course.
A Yes.
Q Let's take a conservative
number, 8. My math is off. $2,560?
A It seems right.
Q For yesterday. You came to
Middlesex County four times to look at this
car.
A Three of them went to the site and
there was another one.
Q We'll talk about the videotape
in a minute. Let's talk about the Jaguar.
Four times you came into Middlesex County to
check this car.
THE COURT: That's a question,
doctor.
Q I think we did it three times.
I thought you said April.
A The 27th.
Q I thought you said April, May.
A 27th of April, May 19th, and
November 22. The 23rd was at _
Q Middlesex County. I'm talking
at the county. I don't mean to confuse you.
A I was thinking of the college.
Q Three times in Edison, once in
New Brunswick.
A And then the videotape _
Q We'll get to it. Four times
you checked the car out?
A I did different things, yes.
Q The first time you spent what,
maybe an hour?
A In total I spent about three days of
billable time when you group everything
together, up until _
Q Prior to court time you're
saying it's three billable days?
A About that.
Q That's 24 hours?
A Yes. That's an approximation.
Q Twenty-four times $3.20 [sic]
is how much?
A Seventy-five hundred plus one
eighty. I can't calculate.
Q Six eighty, right?
A Yes.
Q Now the videotape was probably
another two, three hours?
A That's included in the three days.
Q You're going to throw in the
$5.00 for the actual cost of the cassette?
A The charge according to my regular
fee schedule is $75.00 for each videotape
done. It's the cassette, it's duplicating,
it's advertising, equipment costs. It's
$75.00 for that. It's $4.00 per photograph
that I take and there are some photographs you
may want to put another hundred dollars for
stills and that.
Q Is it fair to say this is all
over $10,000?
A I expect that's what the total
billing is going to be.
On re-cross-examination, the subject was Dr. Kuperstein's opinions
regarding a witness's ability to see the scene from the vantage
point claimed. The subject of fees as bearing upon the opinions
offered was once again injected by the prosecutor:
Q With respect to [the witness]
what you think he could not see based upon
your test and your videotape and your ten
thousand dollar fee and everything else you've
done in this case _
[DEFENSE COUNSEL]: I object to it.
That's just rude.
THE COURT: It's unnecessary.
[THE PROSECUTOR]: It goes to his
credibility.
THE COURT: Objection sustained.
Your statement doesn't. He's already
testified as to what his fee is. You've drawn
a diagram.
Next question. Let's move this
along.
These attacks on the credibility of defendant's experts by
concentrating on the fees they charged as well as the substance of
their testimony continued into the prosecutor's summation. That
focus intruded even in the prosecutor's comments upon the testimony
of another, lay, witness:
[THE WITNESS] also had a lot to tell
us about the attraction and obsession by the
defendant. He told you how much the defendant
wanted to have sex with her. I guess men use
that expression. The defendant had a lot to
say to [the witness] about Lazara. He
listened to it, testified to it very
truthfully. He certainly wasn't paid $10,000
to come in here and testify as to what he
observed and heard.
Then the prosecutor began to associate defense counsel with the
suggestion that defendant's case including the expert
witnesses__defendant's only witnesses beyond a single character
witness__was premised on lies.
[THE PROSECUTOR:] . . .
[Defense counsel] in one of his many
attempts to spin the evidence and misstate the
facts told you that [two State's witnesses]
said that the defendant was wa[]ving.
and then, shortly thereafter:
. . . [I]t bothers me to hear the defense
attorney misstate the facts and the law too.
I think when [defense counsel] got before you
this morning he was fast and loose with what
[a State's witness] said.
You know at first Dr. Krieger didn't
even want to acknowledge that the blinker
switch was on the left side of the steering
column. I showed him the picture and he's
like, well, I don't know what this is. Well,
when you look at those pictures you'll see for
yourself. I guess he got coached a little bit
over the next 12 or 24 hours because when he
came back on the stand he agreed that the
switch was on the left side. He knew that's
where we left off and he knew I was going to
grill him to death on that point. That turn
signal is very important.
The summation attack on the expert witnesses based on their
fees accelerated, and the argument that defense counsel had
fomented untruth continued, both engendering yet another sidebar
conference:
The victim is pulling into the shoulder. The
light came on as the victim pulled by the
driveway because the victim was alive when she
turned on the switch. All the other motions
or actions with respect to stopping that car
also indicate Mrs. Cunha was alive. It's
almost ludicrous to assume this woman could
have been shot up the road and without any
evidence whatsoever of a shooter up the road
standing along the curb in another car or a
gunshot being heard up the road. It's
ludicrous to believe that this woman could
have come to that scene right by where the
defendant was standing.
I wonder if I should even spend as
much time negating that claim. There is no
evidence to support it. But, you know, twelve
of you have to agree on the case in order to
find this man guilty. And I need to really
eradicate from your mind how this woman could
have been shot up the road. It's simply
impossible. And with respect to that defense
in general let me just tell you right now it's
a desperate defense because our case is so
good, the State's case is so strong, [defense
counsel] has to pay witnesses to come in here
to concoct a story in order to distract you
from the proofs. If you don't believe the
defense in this case there's simply just one
option. That's to find this defendant guilty
because he's the only person at the scene who
could have shot the victim. He's the only one
who fled from the scene. By the way, [defense
counsel] doesn't say anything about that in
his summation.
[DEFENSE COUNSEL]: Can I see you at
side bar, judge?
THE COURT: Yes.
(The following is a discussion at
side bar:)
[DEFENSE COUNSEL]: I paid no fact
witnesses. I paid no one to concoct a story.
Expert witnesses as they always are are
compensated for their testimony. But to leave
the impression that I concocted a story is to
say that fact witnesses are somehow paid to
give testimony and I believe that impression
is wrong to give. I have no problem with my
adversary commenting on the fact that expert
witness was compensated but an expert witness
does not give facts, gives opinions based on
the evidence that's already in the case.
THE COURT: Other than?
[DEFENSE COUNSEL]: Paid to concoct
a story is what I'm objecting to.
THE COURT: Of the expert witnesses?
[DEFENSE COUNSEL]: The prosecutor
said I paid witnesses to concoct a story.
There are no fact witnesses that were paid by
the defense.
THE COURT: How many fact witnesses
did you call?
[DEFENSE COUNSEL]: None. That's my
point.
THE COURT: Then you couldn't have
paid any.
[DEFENSE COUNSEL]: Right. That's
why there's a misleading impression, that I
paid people to concoct a story.
THE COURT: So it's the concoction
of the story that you are objecting to.
[DEFENSE COUNSEL]: Fact, not
opinion.
THE COURT: You called no fact
witnesses.
[DEFENSE COUNSEL]: I have not.
That's my point.
THE COURT: Other than the
fact/character witness.
[DEFENSE COUNSEL]: I called one
fact/character witness, that's right.
THE COURT: All right.
[THE PROSECUTOR]: Judge, obviously
in the context of my summation I'm referring
to the expert witnesses. I'm referring to
their testimony. If counsel is trying to
split hairs and suggest that I would have been
permitted to say ["]concoct an opinion[",]
then I think it's semantics at this point. I
did say in a strong attack on experts that
they are fabricating their testimony for a
fee. That was the basis behind my comment. I
think it's permissible.
THE COURT: All right.
What's your application?
[DEFENSE COUNSEL]: That it be
stricken and the jury be cautioned, given a
cautionary instruction.
[THE PROSECUTOR]: I object to that.
I didn't say anything that was improper.
THE COURT: Counsel, there was one
fact witness, Lieutenant Velazquez, who was
not paid. Certainly your comments were not
improper as it relates to experts, Dr.
Krieger, Dr. Kuperstein. I don't want the
jury left with a misimpression that there was
any money paid to Velazquez. With respect to
Velazquez I grant the application for an
instruction that fact witnesses_I'll make the
statement generally that fact witnesses are
not paid and that their testimony is provided
without any formal payment.
[DEFENSE COUNSEL]: I have no
objection to that.
(End of discussion at side bar.)
THE COURT: The objection is
sustained.
Ladies and gentlemen, fact witnesses
are not paid and you should not therefore
infer that any fact witness in this case
received any compensation because they did
not.
The prosecutor persisted:
[THE PROSECUTOR]: I'm very clear
about my last statement. I'm referring to the
statement two witnesses that [defense counsel]
called who he paid to come up with this
fabulous opinion of theirs, not Detective
Velazquez who offered very little in this case
as a fact witness and as a character witness.
I'll talk more about that in a minute.
As the summation proceeded, the prosecutor reviewed the
testimony of Dr. Presswalla, stressing that he had testified as the
State's Chief Medical Examiner with a wealth of experience as a
forensic pathologist. The prosecutor then juxtaposed the
credentials and experience of Dr. Krieger, turning once again to
the fact that he and Dr. Kuperstein had been paid expert witness
fees.
This man was a professional witness
just like Ira Kuperstein. He came here for
one reason and one reason alone. He came here
because he was paid. He was paid to testify.
(Demonstrating.) The only thing that Dr.
Krieger talked to you when he got up on the
stand was money. He had the nerve to say I'm
not charging my sixty-five hundred dollar fee
because I'm here because I think my civic
obligation, my civic duty calls me to right
the wrongs that Dr. Presswalla made. That's
nonsense just like everything else he said.
Just like the 90 degrees and parallel lines.
All nonsense. About the only thing Dr.
Krieger told you that was true was his name.
About the only thing that made any sense.
Well, of course he did acknowledge the medical
[mal]practice. He seemed a little bit
surprised by that. I guess he didn't know
that I did my homework. You see, when Dr.
Krieger was called to the stand I asked him
about the death of that newborn mother and her
newly born infant which cost him $675,000. He
was also sued for leaving another person
paralyzed. There were six malpractice cases
that I went over. I'm not going to clutter my
chart. I have my note. I can read that to
you. It's in the record. What did he say as
the heat was turned up? Well, it was a
residence. [sic] Oh, it was a business
decision by the hospital. Oh, really? They
picked up three mistakes? Actually it was the
State. As if it was better to him. Oh, so
the taxpayers had to pick up for your screw-
ups, is that it? What kind of a doctor is
this who comes in here for $2900 to exercise
his civic duty and tells us that erratic
driving means a person shot the gun? He was
just like Ira Kuperstein, another professional
witness. These guys, both of them, are not
very good at their chosen profession.
Kuperstein is a consultant which means he
can't get a real job. Okay? That means he's
got to pick up work in the courts as an
expert.
The guy came in here for $10,000 and
explained to you how he used his old convert
[sic] sneaker to replicate how the victim's
foot would have rested on the brake pedal.
Explained to you how it took him three times
to test the car. What he didn't want to admit
to you was because a police officer in our
office, Middlesex County Prosecutor's Office,
by the name of David Korey pointed out his
mistakes. He was trying to pull the wool over
your eyes by suggesting this Jaguar would hold
on a grade without a foot applied to the brake
because that's what he did on the first two
tests, on ruddy concrete and on different road
surfaces with underinflated tires and the
like. When I told him take it to the scene
and got a different result he danced around
the stand there to say all I wanted to do was
check the brake light. Well, both Kuperstein
and Krieger knew how to deflect and stick me
and jab me with their opinions about coaching
and the like, about how Ruppert can't see, and
these guys, they get paid to do stuff like
that because they're pros. If they were good
at what they did they wouldn't be here. For
Kuperstein's testimony, $10,000. What did he
say that made any sense? He tried to fool you
with a videotape that [defense counsel] was a
part of. The defense attorney drove the car
in question that Kuperstein was sitting in the
passenger seat with his camera. I guess you
have to trust [defense counsel] as to the rate
of speed when you look at this tape because
Kuperstein says we practiced a couple times.
We tried to get it at 25 miles an hour to
replicate how Ruppert was driving by. Well,
if you look at that type the distances are
off, the angles are off. The victim is barely
noticeable or the exemplar I should say. This
person that they use is the defendant's twin
brother crouched in front of the car blocking
the view. Jeffrey says the person was to the
right. Again, $10,000 to fabricate evidence,
to beat a murder charge. Great country,
America, it really is, when you can pay a
witness to come up with fraud like this.
[DEFENSE COUNSEL]: Judge, I have to
be heard at side bar.
(The following is a discussion at
side bar:)
[DEFENSE COUNSEL]: I made an
objection some time ago about the prosecutor
saying I concocted a story by the use of
money. Now he said deliberately the second
time that I fabricate, paid $10,000 to
fabricate evidence, and now I think it's
prejudicial. I ask for a mistrial.
THE COURT: Okay.
[THE PROSECUTOR]: Judge, it's clear
that the tape was fabricated. It was
produced. Fabricate takes on lots of
different connotations, but this tape was put
together. It was composed. It was created.
I can't think of any other synonyms but it was
put together by Dr. Kuperstein. It's my
position that it's misleading given the
angles, given the depth of field and focus,
everything I asked when I crossed him on.
There's no doubt this witness was paid. The
jury is entitled to assess the witness'[s]
interest in the outcome of the case in
determining the credibility of the witness.
Dr. Kuperstein said from his point of view,
from his eye, Ruppert couldn't see what he
could see. I thought the whole videotape
issue was objectionable. You let it in and I
respect your ruling but it's evidence that was
suspect right from the get go. It's not a
coincidence from my point of view this man was
paid $10,000 to come in and participate in
these proceedings. The jury is entitled to
know all that when they assess the credibility
of the videotape.
THE COURT: Counsel, the term
fabrication, however, has another connotation,
that is, that the videotape was or is the
product of a lie. What's essentially what the
objection goes to.
Is that correct?
[DEFENSE COUNSEL]: That's right.
[THE PROSECUTOR]: And I'll stand
behind that.
THE COURT: There's been no evidence
introduced before the jury that any witness
lied. The jury has to make that determination
with respect to the credibility of the
witnesses.
Counsel, I'm going to deny your
application for a mistrial. With respect to
your application for curative instruction I'll
hear you in the alternative.
[DEFENSE COUNSEL]: Judge, I think
it's difficult for a curative instruction
that's efficacious. A door has been opened.
The cow is out of the barn. The toothpaste is
out of the tube. It's difficult to put it
back. Maybe you would give me a chance to sum
up in rebuttal and I think I could deal with
it but I don't see how a curative instruction,
I can't imagine one because this is the second
objection in summation to the exact same point
and the impression that the jury is being left
with is that I paid for a concocted story and
I paid for fabricated evidence.
THE COURT: All right, counsel. I
don't perceive it as being as difficult as you
do. I am going to advise the jury that it's
their job to determine the credibility of
witnesses. I am also going to advise the
jury, which they will be advised during my
final charge, particularly with respect to
expert witnesses, that it is not unusual in
that it is usually the case that expert
witnesses are paid for their testimony. I
think that certainly will cure any prejudice
that the prosecutor's use of the term
fabricate which only does mean from all
practical perspectives that a lie was
concocted. That's a function for the jury to
determine whether or not the experts and any
other witness's testimony is credible and
therefore worthy of belief.
[THE PROSECUTOR]: May I say one
thing about the reference to the lie that I
submit was part and parcel of Kuperstein's
testimony? I am clearly entitled to say when
I think witnesses have lied. [Defense
counsel] said that Abilio Cunha lied. I
didn't get up here and start dancing making
objections because I believe it's proper
comment for lawyers in summation to allege
lies from witnesses so now for [defense
counsel] to say, well, the prosecutor can't
call my witness a liar is a specious attack on
my summation and it's meant to delay this
proceeding. I'd like to get in front of the
jury so we can have your charge.
[DEFENSE COUNSEL]: The attack I
made on Mr. Cunha was supported by the record,
by prior inconsistent statements. Here there
is no evidence in the record that Dr.
Kuperstein in any way in making this exemplar
deviated from the facts that were in the
record at the time.
THE COURT: That's another question
for the jury to determine.
[DEFENSE COUNSEL]: I think they
need some curative instruction on fabricated.
THE COURT: I already told you I'm
going to give them an instruction.
[DEFENSE COUNSEL]: I think we need
it now.
THE COURT: I intend to give it to
them.
(End of discussion at side bar.)
THE COURT: Ladies and gentlemen,
with respect to expert testimony, I will tell
you this again during the course of my final
charge, it is not unusual and it is
commonplace for experts to be paid for coming
to court and rendering testimony and there is
nothing unusual about that. Now with respect
to whether a witness fabricated testimony or
lied, and is worthy of belief or not, is
credible or not, is for you, the finder of
fact, the jury, to determine, and that is
solely within your purview to determine
whether or not a witness is credible and
therefore worthy of belief.
All right, counsel. Go ahead.
[THE PROSECUTOR]: [Defense counsel]
has made certain statements about his case,
brought these witnesses whose credibility you
will determine; and with respect to the
experts and their fees I'll remind you now
that the judge will tell you one of the
factors involved in assessing credibility is
one's interest in the outcome of the case.
People who are paid to testify want to win.
They want to win on behalf of their client.
For what reason? To get hired again. To come
back in another trial and get more money. At
$10,000 a pop Dr. Kuperstein has a large
incentive to make it up to fit his case. He
didn't know anything about engineering when it
took him three times to do a very simple test
on a car.
The prosecutor's summation eventually concluded with a coda on
the theme of expert witness compensation:
Nobody that was called by the State,
especially the eyewitnesses that came by, had
any ax to grind or paid to testify. They all
came forward with their honest recollection of
what happened. When you sum it all up there's
only one thing you can do, that is to find
this man guilty, guilty of murder. Thank you.
"Prosecutors are afforded considerable leeway in closing
arguments as long as their comments are reasonably related to the
scope of the evidence presented. * * * Indeed, prosecutors in
criminal cases are expected to make vigorous and forceful closing
arguments to juries." State v. Frost, supra, 158 N.J. at 82
(citations omitted). Nevertheless, "[t]he primary duty of a
prosecutor is not to obtain convictions, but to see that justice is
done." State v. Ramseur,
106 N.J. 123, 320 (1987)(quoted in
Frost). "It is as much his duty to refrain from improper methods
calculated to produce a wrongful conviction as it is to use every
legitimate means to bring about a just one." State v. Farrell,
61 N.J. 99, 105 (1972)(quoting Berger v. United States,
295 U.S. 78,
88,
55 S. Ct. 629, 633,
79 L. Ed. 1314, 1321 (1935)(quoted in
Frost)).
Whether particular prosecutorial efforts can be tolerated as
vigorous advocacy or must be condemned as misconduct is often a
difficult determination to make. In every instance, the
performance must be evaluated in the context of the entire trial,
the issues presented, and the general approaches employed. Here,
there is no question that the prosecutor exceeded the bounds of
propriety. Some of the specific challenges to the testimony of
defendant's experts, both in cross-examination and on summation,
considered separately, might well have been allowable as instances
of tolerable advocacy, but when viewed together in the light of the
prosecutor's unsubtle and evidentially unsupported assertions that
the experts had sold their integrity for their witness fees, the
line established in Smith was crossed. The prosecutor would have
been well advised to allow the logic of the State's theory to speak
for itself, rather than engaging in a vituperative attack on the
individuals conveying the message of the countervailing theory.
The summation in this case began badly with an ill-conceived statement designed to prejudice the jury into viewing