State v. Williams

• Decision Date: 19 January 2021
• Docket Number: 083532,A-46 September Term 2019
• Citation: 243 A.3d 647,244 N.J. 592
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Damon WILLIAMS, a/k/a Danen Williams, David Bowman, and Damon Bailey, Defendant-Appellant.
• Court: New Jersey Supreme Court

244 N.J. 592

243 A.3d 647

STATE of New Jersey, Plaintiff-Respondent,

v.Damon WILLIAMS, a/k/a Danen Williams, David Bowman, and Damon Bailey, Defendant-Appellant.

A-46 September Term 2019

083532

Supreme Court of New Jersey.

Argued September 29, 2020

Decided January 19, 2021

Alison Gifford, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Alison Gifford, of counsel and on the briefs, and Frank M. Gennaro, Designated Counsel, on the briefs).

Jason Magid, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Jill S. Mayer, Acting Camden County Prosecutor, attorney; Nancy P. Scharff, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Alexander Shalom, and Jeanne LoCicero, on the brief).

Carol M. Henderson, Assistant Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Carol M. Henderson, of counsel and on the brief).

JUSTICE SOLOMON delivered the opinion of the Court.

Defendant Damon Williams was charged with robbing a bank. In the course of the alleged robbery, defendant did not display a weapon or make a verbal threat. Instead, he passed a note to a young female teller which said, "Please, all the money, 100, 50, 20, 10. Thank you." The central issue at trial was whether defendant committed second-degree robbery -- theft using force or the threat of force -- or third-degree theft -- exercising unlawful control over the movable property of another. The jury convicted defendant of robbery.

In this appeal, we consider whether the jury might have reached that result because the prosecutor showed the jury a PowerPoint presentation in her closing that contained a still photograph from the movie The Shining and commented, "if you have ever seen the movie The Shining, you know how his face gets through that door." The PowerPoint slide depicted Jack Nicholson in his role as a violent psychopath who used an ax to break through a door while attempting to kill his family. The photograph contained the words spoken by Nicholson in the movie scene as he stuck his head through the broken door -- "Here's Johnny!" The slide also bore the heading "ACTIONS SPEAK LOUDER THAN WORDS," a theme used by the State throughout the trial to suggest to the jury that defendant's conduct in the moments leading up to and following defendant's passing the note to the teller supported a finding of robbery when viewed in context. The photograph was not previously shown to the court or defense counsel and had not been used at trial or offered or admitted into evidence.

We determine that the prosecutor's comments and use of the PowerPoint slide amounted to prejudicial error. We therefore reverse the judgment of the Appellate Division, vacate defendant's conviction, and remand for a new trial.

I.

The appellate record reveals that in the summer of 2014, defendant entered a Bank of America branch in Merchantville, Camden County, carrying a bag and wearing a sweatshirt, dark pants, a New York Giants hat, and aviator sunglasses; his fingertips were covered by band-aids. As he approached the window of Maria Cervantes, a bank teller in her early twenties, defendant bent down until the two were at eye level and leaned toward the bars above the counter separating tellers from customers. Defendant then passed Cervantes a note that said, "Please, all the money, 100, 50, 20, 10. Thank you." Cervantes opened her cash drawer and gave defendant about $4,600. When she tried to include a pack of $20 bills containing a GPS tracker and a device that would trigger a silent alarm, defendant instructed her not to. During the encounter, defendant did not produce a weapon or threaten the use of a weapon, nor did he verbally threaten violence if Cervantes did not comply with his request. Defendant then walked out of the bank and another teller, Rachel Cowgill, triggered the alarm.

Fingerprint evidence lifted from the note handed to Cervantes identified defendant, and officers arrested him several weeks later. A Camden County grand jury indicted defendant for one count of second-degree robbery, contrary to N.J.S.A. 2C:15-1(a)(2).

At trial, during opening statements, the prosecutor said that a theme of the case would be "actions speak louder than words," to emphasize that defendant's actions amounted to more than "just a mere request for money." In response, defense counsel highlighted that defendant did not use a weapon or force, pointing out that the fundamental question before the jury was whether defendant "deliberately, consciously, intentionally, purposefully placed Maria Cervantes in fear of immediate bodily injury." Thus, the central trial issue was whether defendant committed second-degree robbery¹ under N.J.S.A. 2C:15-1(a)(2) -- theft using force or the threat of force, purposely putting Cervantes in fear of immediate bodily injury -- or third degree theft² under N.J.S.A. 2C:20-3(a) -- exercising unlawful control over the "movable property of another with purpose to deprive him thereof" -- a lesser-included offense of robbery.

At trial, Cowgill, who was standing less than a foot away from Cervantes during her encounter with defendant, testified on behalf of the State. She recounted that defendant wore "heavy dress" during the middle of the summer, along with a hat "that was pulled down" and sunglasses.

According to Cowgill, defendant, who was over six feet tall, approached Cervantes, who was about "five two," when she finished with another customer and crouched down to "eye level" with her. Cowgill described defendant as "pretty much on top" of the metal gate separating tellers from customers. Although she did not see defendant pass the note to Cervantes, Cowgill observed defendant pointing to the note, which caused Cervantes to begin shaking visibly. Cowgill testified further that when Cervantes attempted to include a pack of $20 bills containing a GPS tracker, defendant forcefully said, "No, leave that there." Cowgill stated that she watched defendant walk out of the bank and then looked at Cervantes, who "started crying and shaking." Cowgill then yelled for her manager and triggered the alarm system.

Cervantes testified that upon receiving the note from defendant, she felt she "had to do what the note said, and was very scared." She affirmed that although "[defendant] didn't display a weapon or attempt to reach for a weapon" she felt threatened and "was still very scared" because she "didn't know what he could have in his pockets."

Surveillance video footage from the bank showed defendant, dressed in the clothing described by Cowgill, walking across the bank's parking lot into the bank. Other video footage captured the encounter between Cervantes and defendant.

Throughout the trial, the State repeated the theme "actions speak louder than words." During her summation, the prosecutor displayed to the jury a PowerPoint slide with the heading "ACTIONS SPEAK LOUDER THAN WORDS," containing the still-shot of Jack Nicholson from The Shining, and said:

We've all seen this, right? This movie? And, you know, these words, "Here's Johnny." Right? If you've never seen the movie, The Shining, this is creepy, but not scary, right? You've never seen it. All right. This guy looks creepy and he's saying some very unthreatening words, "Here's Johnny."³ But if you have ever seen the movie The Shining, you know how his face gets through that door. So, again, I just point that out to illustrate. It's not just the words; it's what you do before and what you do after the words that matters. And that's what makes this a robbery.

After the prosecutor concluded her summation, defense counsel objected to the photo's use. A colloquy ensued, the pertinent parts of which are as follows:

Defense counsel: Jack Nicholson's face is through the broken door. That is preceded by him smashing that door with an ax. So, that is clearly --

The Court: Is that what was on there?

Prosecutor: No.

....

Defense counsel: I mean for those who are familiar with the film understand the context that the door was smashed with an ax, and that is certainly far more than what occurred in this case. So, you know, we're talking about use of force or the threat of force, and that was certainly preceded by the threat of immediate bodily injury -- immediate bodily injury whereas our argument here is that this case doesn't include those kinds of facts.

.... Defense counsel: Like I said, my concern is that those familiar with the film, and probably everybody is working in the back of their minds the facts that he smashed that door with an ax, so.

The Court: Okay. Well, is there anything you want me to say?

Defense Counsel: Just that the State gave an illustration with -- showing a clip from a -- not a clip, but a picture, a still from a film, and only meant to illustrate what? I'm asking.

Prosecutor: That it's not the words -- it's not the words "Hey Johnny" alone.

During the colloquy, the trial judge offered a curative instruction, but stated, "If I do that though, I'm underscoring again, the prosecution's arguments. So, it's -- always with those curatives is always a double-edged sword." Defense counsel ultimately agreed that "it may be best left alone." Thus, the court did not give a curative instruction. The jury convicted defendant of second-degree robbery. After the trial court denied defendant's motion for a new trial, it sentenced defendant to an extended term of fourteen years’ imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

On appeal, defendant argued that the prosecutor's use of the PowerPoint slide during summation denied defendant a fair trial. Specifically, defendant argued the photograph was an inflammatory visual aid, not in evidence, that bore no...