State v. Perry

• Decision Date: 07 May 1974
• Citation: 319 A.2d 474,65 N.J. 45
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Andrew PERRY, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 45

65 N.J. 45

319 A.2d 474

STATE of New Jersey, Plaintiff-Respondent, v. Andrew PERRY, Defendant-Appellant.

Supreme Court of New Jersey.

Argued March 5, 1974.

Decided May 7, 1974.

Anthony M. Mahoney, Designated Counsel, Newark, for defendant-appellant (Stanley C. Van Ness, Public Defender, attorney; Anthony M. Mahoney, of counsel and on the brief).

Kenneth P. Ply, Asst. Prosecutor of Essex County, for plaintiff-respondent (Joseph P. Lordi, Prosecutor of Essex County, attorney; Kenneth P. Ply, of counsel and on the brief).

PER CURIAM.

We affirm essentially for the reasons stated in the opinion of the Appellate Division, 128 N.J.Super. 188, 319 A.2d 505 (1973). We feel compelled, however, to add some additional comments in view of the observations made by the dissent.

The basic and only objection of the dissent to the prosecutor's summation is that 'the jury was called upon to confront the large issue of police corruption in general and, by its verdict, to redress the injustices visited by society upon the disadvantaged.' This criticism is allegedly predicated upon the two references in the closing statements All the Willie Lee Joneses of the world are on trial here and not only Andrew Perry. All the Willie Lee Joneses. And you by your verdict will say whether or not the Willie Lee Joneses of the world are going to be given a fair shake or whether or not the Willie Lee Joneses of this world are going to be subjected to not only being arrested for whatever crime they may have committed but whether or not they are going to be subjected to further arrest after that and whether or not because of the position in which they find themselves in the Willie Lee Joneses of this world are going to have to pay through the nose to everybody. That has got to stop, ladies and gentlemen. It has got to stop.

I'm asking you now that after you listen to His Honor's charge come back with a verdict of guilty relative to Mr. Perry. I'm telling you to come back and tell Mr. Perry and every other dishonest cop, and there are some unfortunately, no we are sick and tired, we the public who really make up the laws, and that he in that capacity is charged with enforcing the laws, that we are sick and tired of the Willie Lee Joneses in this world being taken advantage of, the Willie Lee Joneses in this world who have enough of their own problems, that they need our help and that we are sick and tired of making more problems for them. Thank you very much.

And it is not wholly without significance that defense counsel was silent at this point in the summation. There was no objection.

The prosecutor justifies these observations on the basis of a response to defense counsel's summation:

And now, of course, the State's star witness, Willie Lee Jones. You noticed I made short life of Mr. Jones, no knit picking necessary there . . .. Why should I sit there and ask him any more questions? . . .. Why even dignify his appearance in this case by making him think that he was an important witness? I didn't want to hear anything from this man, and I'll tell you why. He was the convicted narcotics dealer . . .. He stood trial before a judge and a jury and then they didn't believe a word he said and found him guilty.

A careful reading of the entire defense summation reveals a sprinkling of many heavy handed statements concerning Willie Lee Jones--comments, we might add, which were well within the rights of defense counsel. Both the prosecutor and the defendant are allowed wide latitude in summation, State v. Bogen, 13 N.J. 137, 140, 98 A.2d 295 (1953), but are confined to the facts in evidence and the reasonable inferences which may be drawn therefrom. State v. Hill, 47 N.J. 490, 499, 221 A.2d 725 (1966). Appraised against the background of the trial, the whole summation and the judge's charge, the passages complained of did not vitiate the fairness of the trial.

The fact is that a police officer was on trial for attempted extortion. And the fact is that the victim of the extortion was a convicted possessor of narcotics and described in summation by defendant's counsel as a convicted narcotics dealer. The issue of police corruption and its potential in dealing with the general class of lawbreaker such as a Willie Lee Jones was squarely before the Court in this trial. Within reasonable limitations, the prosecutor should be permitted to observe the serious social consequences of the crime charged. But it is always necessary that the jury, as in this case, is clearly instructed that its verdict must be based on the evidence. State v. Knight, 63 N.J. 187, 193--194, 305 A.2d 793 (1973); State v. Capano, 125 N.J.Super. 383, 311 A.2d 191 (App.Div.1973); United States v. Ramos, 268 F.2d 878, 880 (2d Cir. 1959).

In light of the foregoing, it was reasonable for the prosecutor to retort to the statements of defense counsel. There was no error and certainly no prejudicial error. In State v. Johnson, 31 N.J. 489, 510--511, 158 A.2d 11, 23 (1960), Justice Proctor said for a unanimous Court:

The prosecutor is entitled to sum up the State's case graphically and forcefully. It is unreasonable to expect that criminal trials will be conducted without some show of feeling. Defense counsel traditionally make dramatic appeals to the emotions of the jury. In these circumstances, a prosecutor cannot be expected to present the State's case in a manner appropriate to a lecture hall.

See also State v. Smith, 27 N.J. 433, 142 A.2d 890 (1958); State v. Ordog, 45 N.J. 347, 212 A.2d 370 (1965). Our dissenting colleague relies upon the dissent in United States v. Antonelli Fireworks Co., 155 F.2d 631 (2d Cir. 1946). The Court therein affirmed a conviction predicated on a summation which was far more emotional and questionable than that under discussion herein. The closing arguments to the jury were delivered on June 8, 1944, soon after the American invasion of Normandy. The defendants were being tried on charges of conspiracy to defraud the United States Government in its prosecution of the war by defective production of bombs and grenades. In this climate, the government attorney summed up and said:

I cherish an overwhelming confidence * * * in the belief that * * * You will render a verdict of which you can . . . be proudly justified in the presence of your fellowmen, those here at home who labor and have labored unceasingly in an honest effort to manufacture munitions of war as well As those of us beyond the seas who look to us for the things they need to sustain them in their hour of extreme sacrifice. (Emphasis added) (155 F.2d at 637).

Such statements were not deemed prejudicial in the context of that trial. ¹

The cases are legion wherein appellate courts have considered remarks in summation resulting in affirmances and reversals of trials. Each case must be evaluated in the factual context presented or one clearly akin to it. Therefore, the legal authorities relied upon by the dissent to support the position that 'reference to the social setting of a trial has not infrequently given rise to a judgment of prejudicial error' must be examined in that light.

In Viereck v. United States, 318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734 (1943), the Court held that the indictment did not substantially allege offenses condemned by the statute and remanded the matter. By way of further observations as to guidelines for the trial judge, the United States Supreme Court directed attention to conduct of the prosecuting attorney. The Court said:

* * * In his closing remarks to the jury he indulged in an appeal wholly irrelevant to any facts or issues in the case, the purpose and effect of which could only have been to arouse passion and prejudice. ³

'This is war. It is a fight to the death. The American people are relying upon you ladies and gentlemen for their protection against this sort of a crime, just as much as they are relying upon the protection of the Men who man the guns in Bataan Peninsula, and everywhere else. They are relying upon you ladies and gentlemen for their protection. We are at war. You have a duty to perform here.

'As a representative of your Government I am calling upon every one of you to do your duty.' (318 U.S. at 247, 63 S.Ct. at 566, 87 L.Ed. at 741).

In Greenberg v. United States, 280 F.2d 472 (1 Cir. 1960), the court said:

The United States attorney commenced his final argument by informing the jury that he was 'a sort of thirteenth juror (who) applies his training in the evaluation of evidence, in analyzing evidence, and tries to convey to the jury just what part the evidence plays in the presentation of a case' (a description we find quite inappropriate, since counsel, unlike a juror, is not required to be impartial). Near the end of his argument the United States attorney sought to put this self-appointment to use. In vigorous language he expressed his personal opinion of the trustworthiness of the government's evidence and the consequent guilt of the accused. Upon objection interposed, the court ruled in the presence of the jury that the prosecutor had a right to argue 'his belief in the evidence.' Counsel continued, and the court overruled a second objection, but expressed a caution. The argument was then repeated. (280 F.2d at 474).

Where would this leave a criminal defendant who is entitled to representation, but whose counsel does not believe in his innocence? Must his counsel nevertheless assert such a belief in order to counter the expressed opinion of government counsel, or does such a defendant have an unrefuted witness against him, in the form of the prosecuting attorney? Or should a prosecutor be permitted to argue, for example, 'Members of the jury, I tell you that in my opinion trained to examine evidence this defendant is guilty as hell. I know it; he knows it. Even his own counsel knows it. Oh yes, his counsel asked you to find him not guilty. But I notice that not once did he suggest to you that he had even a shadow of...