State v. Frost

• Decision Date: 15 April 1999
• Citation: 158 N.J. 76,727 A.2d 1
• Court: New Jersey Supreme Court
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Albert FROST and Barry Frost, Defendants-Appellants.

727 A.2d 1

158 N.J. 76

STATE of New Jersey, Plaintiff-Respondent, v. Albert FROST and Barry Frost, Defendants-Appellants.

Supreme Court of New Jersey.

Argued January 5, 1999.

Decided April 15, 1999.

Matthew Astore, Deputy Public Defender II, for defendants-appellants (Ivelisse Torres, Public Defender, attorney; Mr. Astore and Michael C. Kazer, Designated Counsel, on the briefs).

Raymond W. Hoffman, Assistant Prosecutor, for plaintiff-respondent (Patricia A. Hurt, Essex County Prosecutor, attorney). Debra L. Stone, Assistant Attorney General, for amicus curiae, Attorney General of New Jersey (Peter Verniero, Attorney General, attorney; Ms. Stone and Carol M. Henderson, Deputy Attorney General, of counsel; Ms. Henderson, on the brief).

The opinion of the Court was delivered by COLEMAN, J.

The issue presented in this appeal is whether certain prosecutorial comments made during the closing-argument phase of defendants' criminal trial deprived them of a fair trial. The Appellate Division in an unpublished opinion concluded that the prosecutor's comments were inappropriate, but harmless. We granted defendant Albert Frost's petition for certification. 153 N.J. 217, 708 A.2d 68 (1998). We now grant defendant Barry Frost's late petition for certification and reverse both defendants' convictions.

I

On November 16, 1995, cousins Albert and Barry Frost were arrested after the Newark Police Department conducted an undercover narcotics investigation at 1126 Broad Street. They were indicted for conspiracy, contrary to N.J.S.A. 2C:5-2 (count one); possession of cocaine, contrary to N.J.S.A. 2C:35-10a(1) (count two); possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5b(3) (count three); possession of cocaine with intent to distribute within a school zone, contrary to N.J.S.A. 2C:35-7 (count four); two counts of distribution of cocaine, contrary to N.J.S.A. 2C:35-5b(3) (counts five and seven); two counts of distribution of cocaine within a school zone, contrary to N.J.S.A. 2C:35-7 (counts six and eight); possession of marijuana with intent to distribute, contrary to N.J.S.A. 2C:35-5b(12) (count nine); and possession of marijuana in a quantity of one ounce or more, but less than five pounds, with intent to distribute, contrary to N.J.S.A. 2C:35-5b(11) (count ten).

In a joint trial, the State and defense presented conflicting accounts regarding the events of that day. The State's version of events was as follows. On November 16, 1995, Detective Hector Mejias of the Newark Police Department was instructed to attempt an undercover drug purchase at 1126 Broad Street, a suspected place of drug activity. As Mejias was approaching the building, he observed a male, later identified as James Bushrod, knock on a rear window of the building, call out "Al," and walk a short distance to a wrought-iron gate at the end of the building. A second male exited the building, took what appeared to be paper money from Bushrod, and returned to the building. About ten seconds later, the second male reappeared, opened the wrought-iron gate, and handed Bushrod a small white object. After Bushrod walked away, Mejias's "back-up team" arrested Bushrod and found a paper fold of suspected cocaine on his person.

Mimicking Bushrod's purchase, Mejias then walked to the target location, knocked on the rear window, and called out "Al." When a male, later identified as Barry Frost, came to the window, Mejias asked him for ten dollars worth of cocaine. Barry Frost met Mejias at the wrought-iron gate where Mejias purchased a paper fold containing what appeared to be cocaine with two marked five-dollar bills, commonly referred to as the "buy money."

After receiving the suspected cocaine, Mejias arrested Barry Frost. Barry Frost then screamed, "Narcos, narcos, flush it." Mejias's "back-up team" ran into an open apartment in the building and arrested Albert Frost as he was attempting to flush something down the toilet. A member of the "back-up team" testified that the police recovered thirty-one small bags of marijuana, twenty-two folds of cocaine, $225 in cash, and the "buy money" Mejias had given to Barry Frost.

The defense presented the jury with a different version of events. Barry Frost testified that at approximately 7:00 p.m. on November 16, 1995, he visited his cousin Albert Frost's apartment at 1126 Broad Street. About two hours into his visit, Barry Frost heard Bushrod calling for his cousin and went outside to see what he wanted. Bushrod asked Barry Frost if he could speak with a female named Stacy who was also in the apartment. Barry Frost went into the apartment to inform Stacy that Bushrod wanted to speak with her. She told him "okay." Barry Frost went back outside and told Bushrod of Stacy's response. Barry Frost had no further conversation with Bushrod, and Stacy never went outside. At no other time did Barry Frost go outside of the apartment.

Approximately five minutes later, while Barry Frost was standing in the apartment corridor, he heard "rumblings" at the apartment door. According to Barry Frost, the officers banged on the door until they were able to break through the wrought-iron gate and kick in the apartment door. At that point, the police entered the premises and arrested Albert and Barry Frost.

Based on those conflicting versions of the facts, defense counsel attacked the officers' credibility during closing arguments. Defense counsel suggested the officers' testimony that Barry Frost opened the wrought-iron gate to consummate the drug transaction made no sense because the area was a high-crime area, and because Barry Frost could have easily completed the transaction through the spaces in the gate. Additionally, defense counsel pointed out that the State failed to produce either the "buy money" or a photocopy of the "buy money" that Detective Mejias said he used to purchase drugs from Barry Frost.

In responding to defense counsel's closing argument, the prosecutor made several comments that the State now concedes were inappropriate. First, in an apparent attempt to rebut defense counsel's observation that although the officers claimed that cash was confiscated at the time of the arrest, none was produced at trial, the prosecutor told the jury that "[t]he [S]tate is not allowed to bring the money in. It's confiscated." When Albert Frost's attorney objected, the trial court instructed the prosecutor to "Please continue." Accordingly, the prosecutor stated: "[The] State is not allowed to bring the money in. It's confiscated, it's in the reports." This time, Barry Frost's attorney objected to the prosecutor's reference to police reports that were not in evidence; the court sustained that objection. However, the court did not strike the comment from the record or instruct the jury to disregard the statement.

Second, in an attempt to bolster the officers' credibility, the prosecutor argued:

I would submit to you, ladies and gentlemen, there is absolutely no evidence in this case that shows wrongdoing by the officers. There's no evidence that locks are cut. There's no evidence that doors were smashed. No evidence of any wrongdoing whatsoever. I'd submit this to you, ladies and gentlemen, do you know the magnitude of the charges that could be brought against officers for such actions.

[Emphasis added.]

Defense counsel objected, but the trial court overruled the objection.

Lastly, the prosecutor made several disparaging comments about defendants' lawyers. He suggested that the jurors dismiss defense counsel's arguments as "lawyer talk":

Look at the evidence, ladies and gentlemen, the Judge will tell you that. Look at the evidence before you, look at the counts before you, don't be distracted by lawyer talk. I'd ask you this. When you go into the jury room and an individual starts talking about, what about that lock—time out, time out. That's lawyer talk.

[Emphasis added.]

Soon thereafter, the prosecutor told the jurors that "the bottom line in this case comes down to ... credibility and I would submit to you that defense counsel is banking on that maybe one of you got a ticket last week and you got a bad taste in your mouth towards officers." (Emphasis added). The court sustained defense counsel's objections to this last comment. Again, the court failed to strike the comment from the record or instruct the jury to disregard it. Apart from sustaining two objections, the only curative action taken by the trial court was to inform the jury, as part of its general instructions, to disregard the attorneys' comments on the evidence if those comments conflicted with the jury's recollection of the evidence.

The jury found defendants guilty on counts one through eight and on count ten. The court sentenced Albert Frost to an aggregate term of ten years with a five-year period of parole ineligibility. It sentenced Barry Frost to an aggregate term of five years with a three-year period of parole ineligibility.

On appeal, defendants argued that the prosecutor's summation exceeded the bounds of fair comment. The Appellate Division recognized that the prosecutor "struck several foul blows in this case." However, noting that the evidence against defendants was "overwhelming" and that "the trial record fairly shrieks of defendant's [sic] guilt," the panel determined that the prosecutor's comments did not affect the fairness of the trial, and were not so grievous as to have the capacity to lead to an unjust result. Nonetheless, the panel was "concerned that by affirming defendants' convictions despite the prosecutor's derelictions, [it] may be encouraging future misconduct." Therefore, the panel referred the matter to the Attorney General "for his review with the hope that corrective action [would] be taken."

II

Defendants argue simply that the prosecutor's comments during summation deprived them of a fair trial. Prosecutors are afforded considerable leeway in closing arguments as long as their comments are...