(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued January 3, 2001 -- Decided May 8, 2001
STEIN, J., writing for the Court.
This is an appeal from a conviction for vehicular homicide. The specific issue is whether comments made
by the prosecutor about the compensation paid to the defense's expert witnesses constituted prosecutorial
misconduct that requires a new trial.
On April 6, 1995, Robert Smith, then age twenty-five, attended a sporting event in Philadelphia with his
father and brother-in-law. He admitted to drinking four or five twelve-ounce beers at the event. At approximately
11:00 p.m., Smith and his father drove to a relative's house in Runnemeade, New Jersey. Thereafter, at around
11:30 p.m., Smith began driving home to Collings Lake.
At approximately 1:00 a.m., Lynn Makowski left her boyfriend Wayne Green's hotel room riding a bicycle
on Route 42. Wayne Green testified that he was living at the hotel at the time and Makowski had left to get some
cigarettes. The evidence at trial revealed that Makowski was dressed in dark clothing except for white sneakers, and
that there were no lights or retro-reflectors on her bicycle. Furthermore, subsequent tests disclosed that the alcohol
content in Makowski's blood was 0.028 percent, a reading that indicated she had consumed one or two alcoholic
drinks. And, blood tests revealed that Makowski recently had inhaled cocaine. The State's Chief Toxicologist
testified that the amount of cocaine found in Makowski's blood indicated very recent indigestion of an amount of
cocaine that was enough to produce a “deleterious effect.”
At approximately 1:00 a.m., Smith was driving toward his home on Route 42. It was a foggy, rainy night,
and the portion of Route 42 where the accident occurred was lit poorly. Route 42 was a two-lane highway and each
lane was about ten-feet wide. The road's shoulder had numerous potholes and ruts, and was not well-maintained.
Smith was driving within the speed limit when his vehicle struck and killed Lynn Makowski while she was riding
her bicycle. The county medical examiner testified that Makowski died as a result of blunt trauma and that the
fracture and dislocation of her neck caused her immediate death.
Smith testified that at the time of impact he thought someone had thrown a brick at his windshield.
However, when he stopped his vehicle and saw an “uncontrollable moving body” on the side of the roadway he
panicked and drove to a friend's house. That friend was not home, so Smith called his uncle and brother-in-law to
tell them what had happened. Following their advice, Smith immediately drove to a nearby police station. At the
police station Smith was read his Miranda rights and, at approximately 4:30 a.m., he signed a waiver card and gave
an oral statement.
Police detected alcohol on Smith's breath and asked him to provide a blood sample. Smith agreed, and
testing of the sample showed his blood alcohol content to be 0.103 percent. The State estimated that Smith's blood
alcohol content at the time of the accident was between 0.12 and 0.17, and that he had consumed between six and
nine twelve-ounce beers on the evening of the accident.
Smith was charged with second-degree vehicular homicide, second degree reckless manslaughter, and
other offenses. At trial, the State's theory was that Smith was driving under the influence when he struck and killed
Makowski, who was riding her bicycle on the shoulder of the roadway. Smith contended that the victim, while
under the influence of cocaine, was riding her bicycle on the roadway without any reflector lights and that therefore
the accident was unavoidable. To find Smith guilty of vehicular homicide, the jury had to find that he consciously
disregarded a substantial and unjustifiable risk while driving his vehicle and that Makowski would not have died but
for Smith's reckless conduct. Because the State and the defense presented expert witnesses who provided sharply
conflicting testimony about where Makowski was riding her bicycle when she was hit by the car, Smith's guilt
hinged on whether the jury believed the defense experts or the State's experts.
The State's witnesses who testified as to the location of the impact were an investigating officer and
Lieutenant James Mentzer, an expert on accident reconstruction. Mentzer had been employed by the Monroe
Township Police Department, and was about to begin work with the Gloucester County Prosecutor's Office. Both
witnesses expressed their conclusions that the point of impact was on the shoulder of the roadway. They further
indicated that the primary basis for this conclusion was the location of the debris from Smith's car and from the
bicycle, which was scattered linearly along the white edge line (or fog line) separating the roadway and the
shoulder. On cross examination, both witnesses acknowledged that debris location generally is not a reliable
indicator of the actual point of impact.
Smith called three expert witnesses - a forensic scientist who served as the chief scientist for the New
Jersey State Police for twenty-one years; a forensic engineer who specializes in the reconstruction of bicycle
accidents; and another forensic scientist. The defense expert who had been chief scientist for the State Police
testified regarding the amount of cocaine in Makowski's body, concluding that her performance level was likely
affected. The second expert testified that more probably than not, Makowski was riding her bicycle on the road at
the time of impact. He explained that because of the very poor condition of the shoulder and the poor visibility, it is
unlikely that Makowski would have been able to navigate the ruts and potholes in the shoulder. The defense's final
expert expressed a similar opinion that “to a reasonable degree of certainty” Makowski was in the travel portion of
the road, and not on the shoulder. Both of these experts also expressed their opinions that the location of debris
along the edge line of the roadway was not a reliable indicator of the actual point of impact.
On cross-examination, the prosecutor elicited testimony from all three of the defense's expert witnesses
regarding the fact that defense counsel was paying their fees and the amount of those fees. In his summation, the
prosecutor cited to that testimony and stated:
Now, admittedly, they have to make a living. They charge hefty fees, and you can decide whether
those hefty fees would influence their testimony at all; whether it would influence them to shade
their testimony at all, whether they would hope to get hired by persons in the future in similar
situations; and, therefore, would want to have certain testimony, so they can collect those fees in
the future.
Defense counsel immediately objected, arguing at sidebar that the remarks suggested the defense attorney was “in
cahoots” with the expert witnesses retained for the defense. The trial court agreed that the comments were
improper, and immediately instructed the jury to disregard the prosecutor's comment about any hopes of an expert
being hired in the future by other attorneys.
In its formal charge, the court gave the jury the standard instruction on expert fees - that the amount of an
expert's fee may be considered by the jury for its possible effects on the witness' credibility, but there is nothing
improper in the expert being paid a reasonable fee for his work and time. After the jury convicted Smith of the
vehicular homicide charge, he moved for a new trial based on the prosecutor's comments in summation. Smith
argued that the comments had exceeded the scope of the record and implied that the experts' testimony was
fabricated or contrived with the assistance of counsel. The prosecutor responded that he had not intended to
indicate that the experts and defense counsel had “cooked up testimony,” but rather that the experts might have
“shaded” their testimony to make them “more marketable to the defense bar in general in the future.”
The trial court reiterated its belief that the comments were inappropriate, but denied the motion for a new
trial. The court stated that in the overall context, the comments were relatively insignificant and were adequately
addressed by the curative instruction. Smith was sentenced to a five-year term of imprisonment with a three-year
period of parole ineligibility, fined, and lost his driving privileges for three years.
The Appellate Division affirmed Smith's conviction and sentence. Concerning the prosecutor's comments
that the defense experts' prospects of future employment had possibly shaded their testimony, the Appellate
Division stated that this was marginally improper and “best left unsaid.” It concluded that in the context of the
entire trial, the comments were not capable of producing an unjust result.
The Supreme Court granted Smith's petition for certification.
HELD: The prosecutor's inappropriate comments that the defense experts may have “shaded their testimony” in the
hope of future employment could have improperly swayed the jury and require a new trial.
1. Prosecutors in criminal cases are afforded considerable leeway in their closing arguments. The primary
duty of a prosecutor, however, is not to obtain convictions, but to see that justice is done. Prosecutors should not
make inaccurate legal or factual assertions during trial and must confine their comments to evidence revealed during
the trial and reasonable inferences to be drawn from that evidence. A finding of prosecutorial misconduct does not
end the inquiry because, in order to justify reversal, the misconduct must have been so egregious that it deprived the
defendant of a fair trial. (Pp. 27-35)
2. The record is barren of any implication that the defense experts fabricated their testimony or were motivated to
draw favorable conclusions based on their relationship with defense counsel or their expectation of future
employment. Moreover, the prosecutor's comments improperly implied that because the State expert was not paid
and the defense experts were, the State's witness was more credible. The prosecutor's remarks were improper and
constituted prosecutor misconduct. (Pp. 35-40)
3. To determine whether the prosecutor's misconduct justifies a new trial, the Court must consider whether the
misconduct was so egregious that it deprived defendant of a fair trial. Because the expert witnesses' testimony
about where Makowski was riding her bicycle when she was hit by Smith's car was highly contested at trial and
because Smith's guilt depended entirely on which experts the jury believed, the prosecutor's comments could have
improperly swayed the jury and denied Smith a fair trial. (Pp. 40-46)
4. The Court notes that in criminal cases the State's expert witnesses are almost always unpaid. Accordingly, the
Court questions the fairness of a jury instruction in criminal cases that merely states that the amount of an expert
witnesses' fee is a matter that a jury may consider as possibly affecting the credibility of the witness. In a close
case, such an instruction may tip the scales in favor of the credibility of the State's expert witnesses who, although
unpaid, may have an equal or greater interest in the outcome than do defense witnesses because they often are
employed by a law enforcement agency involved in the prosecution. The Court therefore requests the Supreme
Court Committee on Model Jury Charges, Criminal, to consider the issue and to modify the standard expert witness
instruction to achieve better balance in the trial of criminal cases. (Pp. 46-47)
Judgment of the Appellate Division affirming defendant's conviction is REVERSED, and the matter is
REMANDED to the Law Division for a new trial.
JUSTICE LONG filed a separate, concurring opinion, in which CHIEF JUSTICE PORITZ joins,
expressing the view that the Committee on Model Jury Charges should revisit whether jurors should be allowed to
consider the amount paid to an expert as bearing on credibility. She believes that once the fact of payment to the
defense expert is revealed, a unitary instruction should be given that includes an explanation of the practical reasons
why the State is not required to resort to paid experts and that the payment of experts by the defense is simply part
of the business of trying a case.
JUSTICES COLEMAN, LONG, VERNIERO and ZAZZALI join in JUSTICE STEIN'S opinion.
JUSTICE LONG, joined by CHIEF JUSTICE PORITZ, filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A-
115 September Term 1999
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT SMITH,
Defendant-Appellant.
Argued January 3, 2001 -- Decided May 8, 2001
On certification to the Superior Court,
Appellate Division.
Theresa Yvette Kyles, Assistant Deputy
Public Defender, argued the cause for
appellant (Peter A. Garcia, Acting Public
Defender, attorney; Ms. Kyles and William P.
Welaj, Designated Counsel, on the briefs).
Jordana Jakubovic, Deputy Attorney General,
argued the cause for respondent (John J.
Farmer, Jr., Attorney General of New Jersey,
attorney).
STEIN, J.
This is an appeal from a conviction for vehicular homicide.
The specific issue is whether comments made by the prosecutor
with respect to defendant's expert witnesses' compensation, and
their relationship to the reliability of their testimony,
constituted prosecutorial misconduct that requires a new trial.
A
On April 6, 1995, defendant, Robert Smith then age twenty- five, attended a sporting event in Philadelphia with his father and brother-in-law. Defendant admitted to drinking four or five twelve-ounce beers at the sporting event. At approximately 11:00 p.m., defendant and his father drove to defendant's uncle's house in Runnemeade, New Jersey, where he stayed for approximately half an hour. Thereafter, at around 11:30 p.m., defendant began driving home to Collings Lakes.
A few minutes before 1:00 a.m., Lynn Makowski, the vehicular homicide victim, left her boyfriend Wayne Green's hotel room riding a bicycle on Route 42. Wayne Green testified that he was living at the hotel at that time and that when Makowski left the hotel she told him that she was going to get cigarettes. However, two packs of cigarettes were found on Makowski's person after the accident. Moreover, when Makowski left the hotel, she was carrying a large bundle of clothes that, according to one of the investigating officers, “filled up three bags.” Among those clothes were many personal possessions, including letters, cards, a comb and a pen. Defense counsel contended during summation that a more likely explanation for Makowski's departure from the hotel was that she and her boyfriend had had an argument and she was leaving him.
The evidence at trial revealed that Makowski was dressed in dark clothing except for white sneakers, and that there were no lights or retro-reflectors on her bicycle. Furthermore, subsequent tests disclosed that the alcohol content in Makowski's blood was 0.028 percent, a reading that indicated that prior to the accident she had consumed one or two alcoholic drinks. Blood tests also revealed that Makowski recently had inhaled cocaine. The Chief Toxicologist of the New Jersey State Toxicology Laboratory, Dr. Lang Lin, testified that the amount of cocaine found in Makowski's blood indicated very recent ingestion of cocaine, either by snorting or injection, that was enough to produce a deleterious effect on Makowski.
At approximately 1:00 a.m., defendant was driving toward his home on Route 42. It was a foggy, rainy night and the portion of Route 42 where the accident occurred was lit poorly. Route 42 was a two-lane highway and each lane was about ten-feet wide. The road's shoulder had numerous potholes and ruts and was not well-maintained. Defendant was driving within the speed limit when his vehicle struck and killed Lynn Makowski while she was riding her bicycle. Dr. Walter Hoffman, acting medical examiner of Gloucester County, testified that Makowski died as a result of blunt trauma and that the fracture and dislocation of her neck caused her immediate death. Makowski suffered multiple injuries, including abrasions and scrapes caused by her body being dragged, multiple fractures including the upper arms, and tearing of the lungs, heart and liver.
Defendant testified that at the time of impact he thought that someone had thrown a brick at his windshield. However, when he stopped his vehicle and saw an “uncontrollable moving body” on the side of the roadway he panicked and drove to a friend's house. That friend was not home, so defendant called his uncle and brother-in-law to tell them what had happened. Following their advice, defendant immediately drove to a nearby police station. At the police station, defendant was read his Miranda rights. At approximately 4:30 a.m. another officer arrived at the police station and he informed defendant of his Miranda rights for the second time. Defendant signed a waiver card and gave the police an oral statement but declined to give a written statement about the events that led up to the automobile accident.
Although defendant appeared to understand his rights and articulated his words without difficulty, the police detected alcohol on his breath and asked him to provide a blood sample. Defendant agreed and the sample was tested. The alcohol content in defendant's blood was 0.103 percent. Based on that and other evidence elicited at trial, the jury could have found that defendant's blood alcohol content at the time of the accident was between 0.12 percent and 0.17 percent. The State estimated that defendant had consumed between six and nine twelve-ounce beers during the course of the evening prior to the accident.
In February 1997 a Gloucester County Grand Jury returned an indictment charging defendant with second-degree vehicular homicide, contrary to N.J.S.A. 2C:11-5 (count one), and second- degree reckless manslaughter, contrary to N.J.S.A. 2C:11-4b(1) (count two). Defendant also was charged with operating a motor vehicle while under the influence, N.J.S.A. 39:4-50, careless driving, N.J.S.A. 39:4-97, and leaving the scene of an accident, N.J.S.A. 39:4-129.
Defendant's jury trial in April and May of 1998 lasted six days. At trial, the State's theory of the case was that defendant was driving under the influence of alcohol when he struck and killed Makowski, who was riding her bicycle on the shoulder of the roadway. Defendant contended that the victim, while under the influence of cocaine, was riding her bicycle on the roadway without any reflector lights and that therefore the accident was unavoidable. Because criminal homicide constitutes “vehicular homicide when it is caused by driving a vehicle . . . recklessly,” N.J.S.A. 2C:11-5, to find defendant guilty the jury had to find that defendant consciously disregarded a substantial and unjustifiable risk while driving his vehicle and that Makowski would not have died but for defendant's reckless conduct. Because the State and the defense presented expert witnesses who provided sharply conflicting testimony about where Makowski was riding her bicycle when she was hit by defendant's car, defendant's guilt hinged on whether the jury believed the defense experts or the State's experts.
At trial, the State presented Corporal Eric Conova of the Washington Township Police Department as a witness. Although qualified to investigate accidents, he was neither an expert in accident reconstruction nor had any training on the subject. Conova testified that a Volkswagen (VW) emblem from defendant's 1991 GL Fox automobile was found close to the white line that runs between the roadway and the shoulder. He also testified that he saw glass from the vehicle's headlight on the edge line of the shoulder within a foot or two of the traveled portion of the roadway, and that the victim's sneaker was found on the edge line of the shoulder just south of the glass debris. Corporal Conova stated that Makowski's bicycle seat and front wheel were found, respectively, 339 feet and 345 feet south of what he alleged to be the point of impact. The bicycle frame was found on the edge line of the shoulder at the intersection of Route 42 and Laurel Avenue. Conova also stated that Makowski's body was found partially on the shoulder and partially on an intersecting street, Summit Avenue. She was about sixty-eight feet from what he believed to be the point of impact. With respect to the condition of the shoulder, Conova described photos shown to him as being representative of the condition of the roadway on the night in question. He stated that the shoulder was in very poor condition, with ruts and potholes that had standing water. Regarding defendant's car, Conova testified that the hood was damaged on the front right side, the front right headlight was broken, the windshield had collapsed inward and the VW emblem was missing. He also stated that the back wheel of Makowski's bicycle was found under defendant's car.
On cross-examination, Conova admitted that because the accident scene was not immediately secured after the accident occurred, there was a lapse of about half an hour during which other vehicles may have driven through the accident scene. Subsequently, defense counsel confronted Corporal Conova with an authoritative text on accident reconstruction. Defense counsel read the following paragraph: “Because debris scatters so much, it is usually a poor indicator of where collision took place. Look for a better indicator of the collision point.” Conova agreed that debris is an indicator of only the general area of an accident's point of impact, and admitted that he picked up only the largest pieces of headlight glass and did not collect the smaller pieces. He also acknowledged that because Route 42 has a “crown” drainage system, water on the roadway would drain toward the edge of the roadway. He stated that he did not know if the volume of rainwater was sufficient to have forced the smaller pieces of glass off the roadway to the shoulder. Conova also admitted that there were potholes and ruts that ran up and down the roadway's shoulder and that some of the potholes exceeded twelve inches in diameter.
Although Conova stated in his initial police report that “he could not place where victim's bike was riding prior to the accident,” at trial he testified that he believed that the impact location was “from that edge line inward toward the right side of the shoulder, in that general area.” He also stated that his statement was only a mere approximation and he admitted that the accuracy of his calculations could be “within several feet.” We note that although Conova was questioned as if he were an expert in accident reconstruction, his opinion concerning the point of impact was elicited only as an opinion based on experience and not as an expert.
The State's only expert witness in the field of accident reconstruction was Lieutenant James Mentzer. Lieutenant Mentzer was then employed by the Monroe Township Police Department and was about to begin work with the Gloucester County Prosecutor's Office as a vehicle homicide investigator. His training and expertise included basic police science work and specialized training in traffic accident reconstruction and accident investigation. Mentzer's educational background included an Associate of Arts in Criminal Justice, a Bachelor of Arts in Law Justice and numerous courses and seminars on accident reconstruction and bicycle crashes. He was qualified as an expert in many New Jersey courts and in federal court. He had taught courses at the police academy in Gloucester County. He was a member of numerous societies related to accident investigation and reconstruction and has published several articles on the subject. Although on voir dire the defense questioned whether Mentzer could give an opinion to a reasonable degree of scientific certainty when he was neither an engineer nor a physicist, the defense acknowledged that Mentzer was qualified as an expert witness.
In reaching his ultimate conclusion about where the impact occurred, Mentzer took into account the police reports, the autopsy report and photographs of the scene. He also visited the scene, saw the physical evidence and interviewed Corporal Conova. Mentzer testified that in his opinion the impact could not have occurred on the roadway. Instead, he believed that the point of impact occurred on the shoulder of the roadway. He explained that in reaching that conclusion he not only took into account the debris, but also the damage to the car and to the victim. He stated that Makowski's injuries to her neck and back were consistent with a collision where a bicycle was hit in the rear by a motor vehicle. He also stated that “the victim . . . was obviously deposited onto the windshield and roof area of the vehicle” because “[t]he roof area of the vehicle was collapsed downward.”
One of the major factors Mentzer relied on in arriving at his conclusion was the location of the debris. Mentzer specified that debris was “anything that came off the victim or came off the vehicle or the bicycle or the bicycle itself.” Mentzer stated that the headlight glass debris was located close to the shoulder line of the roadway in a conical shape and that it was a good indicator of the general area where the impact occurred because the glass debris “is going to spread out just a little bit” from where the first contact occurred. Mentzer testified that in his opinion, after being hit by defendant's car “[t]he victim was carried some distance from the vicinity of where the impact occurred and fell off of the shoulder surface, actually more onto a side street.” Moreover, Mentzer stated that the position of the bicycle frame, front wheel, and seat, all of which were linearly positioned along the roadway's shoulder, was consistent with an impact that occurred on the shoulder rather than on the roadway. Mentzer also testified that the location of the debris was consistent with a “roof vault” type of accident and that “the victim was carried some distance from the vicinity of where the impact occurred and fell off of the surface, actually more onto a side street.” Thus, Mentzer concluded that as a result of having consumed alcohol defendant operated his vehicle about three feet to the right of the shoulder line and the point of impact was “roughly two feet off the roadway.”
On cross-examination, Mentzer conceded that the roadway's shoulder had deteriorated to the point that it had significant potholes. Moreover, he admitted that when he went out to investigate the scene the roadway already had been repaved, and that he made no independent effort to verify whether the size of the potholes, as described by Corporal Conova, was accurate. Mentzer also acknowledged that the debris is not a reliable indicator of the actual point of impact, and that he did not make any measurements to calculate the speed at which defendant was driving prior to the impact. He also admitted that he omitted conducting any inquiry about the extent of the lighting on the roadway at the time of the accident, and that he merely “induced the conspicuity aspect of the individual riding the bicycle.” With regard to the location of Makowski's body, Mentzer acknowledged that studies have been done that indicate that victims of roof vaults often land in different places. He stated that Makowski's body moved “somewhat to the right over the roof,” and that he could not “be certain as to how much or what angle she rolled to the right.”
The defense called three expert witnesses. Dr. Richard Saferstein is a forensic scientist who has a Ph.D. in chemistry and has served for twenty-one years as the chief forensic scientist for the New Jersey State Police. Saferstein has taught forensic science at the college level and has written a leading textbook in the field of forensic science. Saferstein testified that Makowski's blood contained a small quantity of alcohol and a significant quantity of cocaine (0.15 milligrams per liter). Saferstein explained that those findings reveal that Makowski used cocaine within two hours of her death. Saferstein concluded that decedent's performance level was likely affected by the cocaine. However, Saferstein acknowledged that his conclusion was based on an average person taking a street level dosage of cocaine and that individuals react differently to cocaine. In addition, Saferstein explained that a person using cocaine usually experiences euphoria and will take risks and “throw caution and self-restraint to the wind.” Furthermore, he testified that in general individuals on cocaine sustain various physical impairments, including blurred vision.
The prosecution confronted Saferstein with only a few questions on cross-examination. The prosecutor elicited that there are no published studies that correlate a 0.15 milligrams per liter content of cocaine with a quantifiable measure of performance, and that Saferstein never made any efforts to quantify Makowski's actual impairment levels. However, on re- direct, Saferstein confirmed that there are published studies documenting cocaine's general side effects.
With regard to Saferstein's compensation, Saferstein was cross-examined by the prosecutor as follows:
Q. Dr. Saferstein, let me get this part out of the way. I don't intend to offend you, how much are you - - how much were paid to work on this case?
A. I received $750 to review the file and to prepare a report. And I expect to be paid $1800 for my appearance here today.
The next defense expert was James Marley Green, an expert in forensic engineering and accident reconstruction of automobiles and bicycles. Green is one of only three forensic engineers in the United States who specialize in reconstructing bicycle accidents. He has a Bachelor of Science in physical science and a Masters degree in industrial hygiene (the study of modeling physical phenomena) and civil/operations research engineering. He is a registered forensic engineer in seventeen states and has been qualified as an expert witness in all states except Idaho. Green testified that he has taught many seminars concerning pedacyclist accidents and that he has written four engineering books on automobile and bicycle accident reconstruction. He also has written a reconstruction handbook entitled “Bicycle Accident Reconstruction in Litigation,” that has become a primary source handbook used by engineers and police departments.
Green has been active in the field of accident reconstruction for twenty-seven years, and has investigated “several thousand” pedacyclist accidents. Furthermore, Green explained that as part of his studies he performs tests at a test track laboratory where he can accelerate bicycles into vehicles using a large rotating plate of asphalt, and uses dummies to study how pedacyclists as well as the debris are affected at the point of impact. He stated that those studies enable him to locate more precisely an accident's point of impact. Green also testified that he is an experienced cyclist and that he raced professionally with racing teams for fifteen years. The State did not voir dire Green or question his credentials as an expert witness.
On direct examination, Green testified that he had reviewed all the physical evidence in the case, including police reports, toxicology reports, property receipts, photographs of the scene and weather reports. He also went to Route 42, once during the day and once at about 1:45 a.m., approximately the time that the accident took place. Green testified that he believed that Makowski could not have been riding her bicycle on the shoulder of the roadway and that she “more probably than not was definitely in the road at the time of the point of impact.” He explained that because there were numerous large potholes in the shoulder it would be extremely difficult to ride on that surface. Green testified that although he is an experienced cyclist he would not have been able to ride his bicycle on that portion of the shoulder of Route 42.
Green opined that Makowski was hit from behind, and was rotated up on the hood of the car, onto the window and then rotated off to the side of the car. Green made this determination based on a “crush profile” that reflects the likely response of a motor vehicle that strikes a cyclist. Furthermore, Green concluded that defendant's car was traveling at a low rate of speed, because decedent's body rotated off the side of the car. According to Green, if defendant were traveling at seventy to eighty miles-per-hour, Makowski's body would have been thrown over the car. Therefore, he concluded that the crush profile of defendant's accident is entirely consistent with a vehicle hitting a bicycle at a speed range of about thirty to fifty miles-per-hour.
In addition, Green testified that he has done considerable work on “conspicuity.” Conspicuity relates to the ability to see objects under certain conditions. He testified that almost all safety regulations now in force regarding bicycles' conspicuity are based on his research and findings. Based on his extensive experience, Green stated:
Based on the facts that it [was] dark, . . . she was wearing dark blue clothing, . . . [there was no] retro reflector [on the bike], . . . there was not a light on the bike as required by New Jersey law, and the fact it was raining, I am going to say due to the reaction time available to the motor vehicle driver, she was, in essence, invisible to him prior to the point of impact.
[(Emphasis added).]
Green explained to the jury how light-colored clothing, such as
flourescent green and yellow, are the best colors to illuminate
someone at night, and that because Makowski was wearing dark
clothing she was not visible. Green also stated that the rain
likely affected defendant's ability to see the decedent. Because
of the rain, “[a]s the motor vehicle approached the cyclist, the
visibility of this cyclist had dropped from what could have been
1,200 to 2,000 feet down to 75 feet or less with the rain.”
At the end of his direct testimony, Green stated that he was
100 percent confident that Makowski went over the side of the
vehicle and did not vault over the vehicle, and further stated:
I can talk in a degree of engineering
certainty on this. Engineering certainty, by
the way, is pretty serious for an engineer to
say under oath. That means I'm 100 percent
certain that something occurred. I like to
talk in terms of engineering probability.
That means more likely than not, but this is
engineering certainty. I would stake my
reputation on this that the bike cyclist was
hit from the rear, was rotated up onto the
car, and was vaulted off the side . . . [a]nd
. . . this cyclist was in the road when she
was hit. She was not on the shoulder. I
added to that, of course, the condition of
the shoulder. I meant to get that into my
answer.
Green's cross-examination by the prosecutor was short, and
left Green's credibility virtually unchallenged. First, the
prosecutor asked Green why it would be difficult to ride a
bicycle on a surface with potholes. Green responded that one
would have to maneuver around the potholes, and that this would
have been difficult to do because there was no illumination of
the roadway. The prosecutor then told Green that there was a
street light post at the scene, and asked whether that would
illuminate the area enough to allow a bicyclist to maneuver
around potholes and be seen by drivers. Green responded that a
“light post” only gives off about twenty feet of light, and that
there would not be enough light to silhouette the area.
The prosecutor then questioned whether the decedent's
bicycle contained a retro-reflector, and inquired if it was
possible for a retro-reflector to be knocked off the bike if a
rider was hit from behind. Green acknowledged that possibility,
but stated that no retro-reflector was found at the scene. The
prosecutor reminded Green that the decedent was wearing white
sneakers, and asked whether that would make her more visible.
Green stated that the white sneakers would not make her more
visible because “90 percent of visualization . . . is from the
center of gravity or belly bottom to the top of your head.” The
prosecutor also noted that a bundle of clothing was found on the
scene and that some of the items were light blue and white.
Green acknowledged that if decedent were carrying those items “at
belt level” they might have been visible. Finally, in terms of
where the decedent was struck, Green agreed that irrespective of
whether the car was in the right lane of the roadway, or
partially in the right shoulder of the roadway, a cyclist struck
by the car would be thrown to the right-hand side of the roadway.
With regard to Green's compensation, the prosecutor asked
the following:
Q: Mr. Green, let me just start out, how
much were you paid for your services
here today and in preparation for this
case?
A: I don't have the billings, but I can
just give you what my normal rate is. I
normally charge - - my company charges
$225 an hour for my time at trial if I
have to travel, and then $200 an hour
for my time at work.
Defense's last expert was Scott Batterman, who is an
experienced forensic scientist. Batterman has a Bachelor of
Science in civil and urban engineering, a Masters of Science in
civil engineering and a Ph.D. in mechanical engineering and
applied mechanics. He has taught as an adjunct professor at
Villanova University and has given presentations and authored
publications and papers on accident reconstruction. Batterman
has experience in reconstructing “hundreds” of accidents since
1989 and has been qualified as an expert in several New Jersey
courts and in Pennsylvania courts.
On direct examination, Batterman explained that in preparing
his report for this case he looked at several items, including
the photographs of the scene, and he inspected the remains of
Makowski's bicycle as well as the scene of the accident.
Batterman testified that the debris found on the scene was not a
reliable indication of the exact point of impact because debris
“spreads over a fairly wide area.” He also stated that,
according to reliable scientific literature, one cannot rely
exclusively on the location of accident debris to determine the
exact point of impact. With regard to the headlight glass
debris, Batterman explained that although some pieces of glass
were found on the shoulder of the roadway, that evidence was
inconclusive because headlight debris spreads and scatters before
it hits the ground. Batterman noted that not all the headlight
glass was recovered and that the bumper of the car could have
prevented the glass from falling. Batterman also commented on
the VW emblem, stating that “there is no way to scientifically
conclude that because a piece of light plastic which flew off a
car which had been on an accident came to rest at that spot . . .
that the car was straddling the fog line at the time of impact.”
Batterman also refuted Mentzer's testimony that Makowski's
sneaker, found on the edge line of the shoulder of the roadway,
was relevant in determining the exact point of impact. Batterman
observed that “you cannot use [the sneaker's] resting point” to
determine where the impact occurred. Batterman concluded:
Basically, when you consider the totality of
the evidence, the fact that debris is a poor
indicator of the location at the point of
impact means that you really can't tell
exactly where the impact occurred; however,
in this case, we know that adjacent to the
fog line on the shoulder, there are a lot of
potholes and it was pretty rough terrain. So
in my opinion, it is more likely than not
that she would have been to the left of the
fog line or in the travel lane portion of the
roadway. And that's essentially my opinion
to a reasonable degree of certainty that she
likely was in the travel portion. And the
presence of debris touching the fog line and
to the right cannot be used to validate the
fact or to reach a conclusion that impact had
to have been on the shoulder of the roadway.
You just can't do that.
On cross examination, Batterman acknowledged that even if
Makowski was in fact riding on the roadway prior to impact, she
could not have been “too far into the lane.”
The prosecutor also questioned Batterman with respect to his
compensation. The prosecutor asked the following:
Q: Dr. Batterman, I'm going to bring up
something that [defense counsel] already
brought up; but, basically, how much are
you getting paid to participate in this
case?
A: My hourly rate is $240 an hour.
Q: Does that include - - the $240 an hour
for the time that you spent going to the
police station?
A: Yeah. My time is my time. I mean, if
I'm asked to spend hours on the case,
and that's my hourly rate.
Q: Okay. And do you have, for example, if
you have to testify in court, do you
have set number of hours or a minimum
number of hours that you charge, or do
you just charge by the hour?
A: No. It's portal to portal for how ever
long it takes me. The same hourly rate.
Q: Okay.
A: It doesn't matter what I'm doing if my -
- if you're tying me up for an hour,
then you pay for an hour of my time.
Q: But you're not like some of these
experts if they show up for an hour,
they want eight hours. It's not that
situation?
A: No.
Q. From the time you leave your office
until the time you get back.
A. Right.
In this case, you have Lieutenant Mentzer, who admitted he is associated with the police, on the one hand. You have two individuals on the other hand, who are hired, paid consultants. Now, admittedly, they have to make a living. They charge hefty fees, and you can decide whether those hefty fees would influence their testimony at all; whether it would influence them to shade their testimony at all, whether they would hope to get hired by persons in the future in similar situations; and, therefore, would want to have certain testimony, so they can collect those fees in the future. You'll have to consider that in your judgment.
Defense counsel immediately objected. At sidebar, defense counsel stated that the remarks go to “the defense attorney being in cahoots . . . with the expert witnesses” In response, the prosecutor stated that his understanding was that he was “allowed to comment on any bias that might be generated by the fees.” In addition, he stated that his comment was permissible because he “did not specifically say the defense attorney” may hire the experts in the future. In response, the trial court stated “[n]o, but that's the correlation that you made. That is the correlation that you just made about hopes of being hired in similar cases in the future.”
Accordingly, the court immediately instructed as follows:
Ladies and gentlemen, please disregard the comment made by [the prosecutor] about any hopes of any experts being hired in [the] future by other attorneys, presumably defense attorneys in other criminal cases in the future. That was not a proper comment, and disregard it.
The prosecutor then continued with summation:
Ladies and gentlemen, I made an improper
comment. I apologize to you. I was not
aware of the impropriety of the argument, but
the Judge has ruled.
In any event, you can consider the fees,
and there will be no argument about that.
You can consider the fees when you're
considering whether the expert is telling the
truth or not or whether the expert has shaded
his testimony.
Before deliberations, the court instructed the jury with
respect to the prosecutor's comment during his formal charge,
stating the following:
You're also instructed that the amount of an
expert witness's fee is a matter which you
may consider as possibly affecting the
credibility, interest, bias, or partisanship
of the witness. However, since all expert
witnesses expect to be paid and are paid, you
are instructed that there is nothing improper
in an expert witness being paid a reasonable
fee for his work and time in attending court
and in preparing for attendance in . . .
court.
Defendant did not object to that instruction.
The jury convicted defendant of the vehicular homicide
charge. At sentencing, defendant renewed his original complaint
with respect to the prosecutor's closing comments on expert fees,
this time in the context of a motion for a new trial. He argued
that the prosecutor had exceeded the scope of the record and that
his comments amounted to an “implication that the experts
testimony on behalf of the defense was fabricated or contrived
with the assistance of defense counsel.”
In response, the prosecutor stated that the comments were
not intended
to indicate that these experts sat down with
[defense counsel] and cooked up testimony in
order to make themselves more marketable to
[defense counsel] in the future. The
comments were made in a way so as to allow
the jury to consider the possibility that the
experts in order to make themselves more
marketable to the defense bar in general in
the future, may have shaded their testimony.
And that argument was made in conjunction
also with an argument to the effect that the
jury could consider the expert's fees.
The trial court reiterated its belief that the comment was
inappropriate, but “that in the overall context of the
prosecutor's summation and comments that was a relatively
insignificant comment that was adequately addressed by the
curative instruction that I gave.”
The court also stated:
[I]n the general instruction that I gave in
my final instructions to the jury about
experts, I gave the standard instruction
regarding fees, that they could consider
that, but they should also consider that
there's nothing improper with experts being
paid for their time, and they're expected to
be paid for their time.
The trial court denied defendant's motion for a new trial, and
added the following:
There was conflicting evidence on both sides.
The jury could have gone either way on this .
. . . There was clearly evidence to support
that finding of guilt that is. And they
chose to rely upon that evidence rather than
contradictory evidence.
Subsequent to the jury's verdict, the trial court found
defendant guilty of leaving the scene of an accident, contrary to
N.J.S.A. 39:4-129, and operating a vehicle while under the
influence of alcohol, N.J.S.A. 39:4-50. Defendant was sentenced
on the vehicular homicide conviction to a five-year term of
imprisonment with a three-year period of parole ineligibility.
Appropriate fines and penalties were imposed, and defendant's
driving privileges were revoked for two years pursuant to
N.J.S.A. 2C:43-2(c). The driving under the influence violation
was merged for sentencing purposes with the vehicular homicide
conviction. For leaving the scene of the accident, in violation
of N.J.S.A. 39:4-129, defendant was sentenced to a $500 fine and
an additional one-year revocation of driving privileges.
The Appellate Division affirmed defendant's conviction and
sentence. The panel found no merit to the defense arguments that
(1) the prosecutor improperly commented on defendant's right to
silence, (2) that the prosecutor's summation exceeded the bounds
of propriety by his comments regarding defendant's expert
witnesses' fees, (3) that the verdict was against the weight of
the evidence, and (4) that his sentence was excessive. With
regard to the summation, the Appellate Division panel stated:
We are satisfied the prosecutor's remarks
were not so improper as to warrant a new
trial. A jury is entitled to hear that an
expert witness is paid for the report and
testimony provided. That information is
properly factored into the evaluation of the
witness's credibility. Here, the prosecutor
did little more than point that out to the
jury, although he did so with greater
elaboration than was appropriate. The expert
witnesses' prospects of future employment as
possibly shading their testimony was best
left unsaid, although such an inference was
not necessarily unavailable to the jury as a
logical component of the general nature of
expert testimony. Nevertheless, the
prosecutor did not cast aspersions on the
witnesses or on defendant and defense counsel
so as to improperly demean them. . . . Here,
the remarks were marginally improper and, in
the context of the entire trial, not capable
of producing an unjust result.
We granted certification. State v. Smith,
164 N.J. 560 (2000).
We have consistently recognized that prosecutors are afforded considerable leeway in their closing arguments. State v. Frost, 158 N.J. 76, 82 (1999); State v. Harris, 141 N.J. 525, 559, 662 (1995). Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries. Frost, supra, 158 N.J. at 82; Harris, supra, 141 N.J. at 559. However, “the primary duty of a prosecutor is not to obtain convictions, but to see that justice is done.” Frost, supra, 158 at 83 (citing State v. Ramseur, 106 N.J. 123, 320 (1987)). Thus, a prosecutor's duty is twofold: a prosecutor must refrain from improper methods that result in a wrongful conviction, and is obligated to use legitimate means to bring about a just conviction. Ibid.; State v. Farrell, 61 N.J. 99, 105 (1972) (citing Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)). However, the increased frequency of prosecutorial misconduct recently caused us to observe that
“because the prosecutor represents the government and people of the State, it is reasonable to say that jurors have confidence that he will fairly fulfill his duty to see that justice is done whether by conviction of the guilty or acquittal of the innocent.” His comments during opening and closing carry the full authority of the State. Hence, we cannot sit idly by and condone prosecutorial excesses.
[Frost, supra, 158 N.J. at 87
(quoting State v. Spano,
64 N.J. 566, 568 (1974)].
Our Court has articulated several principles with respect to
the appropriateness of prosecutor's comments. We recently held
that prosecutors are not permitted to cast unjustified aspersions
on the defense or defense counsel. Id. at 86. We specifically
noted that a prosecutor is not permitted to characterize defense
counsel's argument as “lawyer talk.” Ibid.; see also State v.
Pindale,
249 N.J. Super. 266, 286 (App. Div. 1991) (holding that
prosecutors are not permitted to tell jury that “defense's role
in this case is to try to confuse you”); State v. Setzer, 268
N.J. Super. 553, 565 (App. Div. 1993), certif. denied,
135 N.J. 468 (1994) (holding it improper for prosecutor, without support
in evidence, to accuse defendant of conspiring with his counsel
to conceal and distort the truth); State v. Acker,
265 N.J.
Super. 351, 356 (App. Div.), certif. denied,
134 N.J. 485 (1993)
(holding that prosecutors are not permitted to characterize
defense attorney and defense as “outrageous, remarkable,
absolutely preposterous and absolutely outrageous”).
We also have held that prosecutors should not make
inaccurate legal or factual assertions during a trial and that
they must confine their comments to evidence revealed during the
trial and reasonable inferences to be drawn from that evidence.
Frost, supra, 158 N.J. at 86; State v. Marks,
201 N.J. Super. 514, 534 (App. Div. 1985), certif. denied,
102 N.J. 393, 508
(1986). We have acknowledged that if a prosecutor's arguments
are based on the facts of the case and reasonable inferences
therefrom, what is said in discussing them, “by way of comment,
denunciation or appeal, will afford no ground for reversal.”
State v. Johnson,
31 N.J. 489, 510 (1960). However, we have “not
hesitated to reverse convictions where we have found that the
prosecutor in his summation over-stepped the bounds of propriety
and created a real danger of prejudice to the accused.” Id. at
511.
Although our case law is limited, several cases have
addressed circumstances in which the prosecutor directly demeans
the credibility of a defense witness. In State v. Rose,
112 N.J. 454 (1988), defendant was convicted for the murder of a police
officer and appealed his death sentence. Id. at 474. We
reversed defendant's death sentence for a number of reasons,
including that the cumulative effect of prosecutorial
improprieties were substantially prejudicial and deprived
defendant of his constitutional right to a fair trial. Id. at
523. During summation, defense counsel argued that the State
failed to rebut defense expert testimony presented during the
penalty phase. Id. at 518. During the State's summation, the
prosecutor responded:
[Defendant] knew at the time he was
interviewed by these doctors what his defense
was . . . . The doctors knew that. They
were explained the law by the lawyers, as to
what he's being charged with, what he faced
and how he could beat the penalty that the
law provides for him and they came in here
and they as counsel said uncontradicted gave
an opinion. Well, the Judge will charge you
their opinion is only as good as the facts
upon which they base their opinion and some
of the facts were wrong and some of the facts
were nonexistent.
We held that the prosecutor's comments were “clearly improper” because he implied that the expert's testimony was fabricated or contrived with the assistance of defense counsel. Id. at 518-19. We stated:
There was no support in the record for the prosecutor's innuendo. The experts were both well qualified, and they carefully explained the basis for their opinions . . . . Without an adequate foundation in the record, the prosecutor's implication that the expert testimony was contrived was totally unwarranted.
We based our holding, in part, on Justice Clifford's dissenting opinion in State v. DiPaglia, 64 N.J 288, 298-307 (1974). In DiPaglia, the defendant was convicted of armed robbery, theft of a motor vehicle, assault with intent to kill a police officer, and carrying a weapon without a permit. Id. at 290. The defense argued that the defendant was insane and should not be held culpable for these crimes. Ibid. In response, the prosecutor stated in summation that defendant was “crazy like a fox.” He went on to argue that the insanity defense “was a carefully contrived fabrication” to avoid defendant's responsibility. Id. at 296. Despite those comments, the majority of the Court held that the defendant was not prejudiced by the remarks. The majority explained that the entire trial was “hard-fought,” but there was no indication that the jury was misled by the prosecutor's comments. Id. at 297.
Justice Clifford observed that the prosecutor's comments implied that the defense was “fabricated,” id. at 299, noting that not only were the prosecutor's statements improper, but that they were “contrary to the evidence.” The dissent explained that the defense experts and lay witnesses all testified that the defendant was insane, ibid., noting that the defense argument was “a respectable one” and that defendant's sanity was a sharply contested issue at trial. Ibid. The dissent concluded that “[t]he implication that the defense was fabricated was simply unsupported by any view of the record.” Id. at 300.
More recently, in State v. Moore, 122 N.J. 420 (1991), the defendant was convicted of murdering his wife and child. Id. at 428. We reversed the conviction on other grounds and did not determine whether any alleged misconduct constituted reversible error. However, we cautioned prosecutors about discrediting the motivation of expert witnesses “without support in the record” and “apparently based only on the prosecutor's own opinion.” Id. at 462. We also noted that comments to the effect that a defense expert was a "professional bleeding heart who was indeed duped by the defendant” were improper. Id. at 461-62.
In State v. Marquez, 277 N.J. Super. 162, 170 (App. Div. 1994), certif. denied, 141 N.J. 99 (1995), the defendant was convicted of false imprisonment as a lesser included offense of kidnaping and assault. During his closing remarks, the prosecutor stated:
The two psychiatrists--two psychologists, I am sorry, two psychologists that came in here yesterday were a joke. Absolute joke.
They were laughing. When you consider
what they had to say to you, a lot of
mumbo-jumbo, they hid behind words. They
couched everything in terms of words . . . .
These guys get on the scene 17 months
later now, they come to the scene and all of
a sudden he cannot--can't understand English.
I don't know if that's so or Dr. Rotgers
figured he would get somebody else on the tab
here that can bill $100 an hour for their
time and services and come into court here.
My friend Frank Dyer, bring him in. He
can earn a couple of bucks. . . .
You know what the most telling portion
of this put-up job, the travesty to put on
you . . . do you remember that long rambling
hypothetical situation Miss Kean gave both
the psychologists?
It took a long time. Assume a lot of
facts, assume this; assume that; assume
another thing. The first--what significance
is that to you? The first words literally
out of both of their mouths were identical.
Do you remember what they said? Yes, I put
some significance on that. Yes, he had some
problems. Putting the blood on that ID card
indicated to me extreme psychosis. It is
like they were reading it from a script.
And it did come like later on in their
testimony. It was fairly, virtually
the first things out of their mouths.
Most respectfully, the first thing.
You know, if that isn't a put-up job, if
that is not rehearsed, if that isn't a
travesty being forced upon you, members of
this jury, I don't know what is.
The Appellate Division concluded that the prosecutor's comments were unsupported by the record, and that the prosecutor's implication that the experts' testimony had been scripted for them by defense counsel mischaracterized the record. Id. at 172. Moreover, the Appellate Division noted that the prosecutor “was not, however, entitled to tell the jury that defendant's attorney had prepared a script for the witnesses' testimony and that defense counsel presented a 'put-up' defense.” Ibid. Although the Appellate Division was deeply troubled by the prosecutor's improper remarks, it declined to reverse defendant's convictions on that ground, concluding that defendant's right to a fair trial was not substantially prejudiced because the jury acquitted him of kidnaping, as well as of aggravated assault. Id. at 173.
In addition to determining whether a prosecutor committed misconduct, a court also must decide whether the prosecutor's misconduct constitutes grounds for a new trial. A finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been “so egregious that it deprived the defendant of a fair trial.” Frost, supra, 158