Appellate Docket No.: A-46-19
Decided January 19, 2021
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark
In a recent opinion, the Supreme Court of New Jersey reviewed whether the use of an image from the Shining during closing summation was appropriate in a circumstance where no physical force was used.
In State v. Williams, defendant entered a Bank of America branch. He approached the window of Maria Cervantes, a bank teller in her early twenties, 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. 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 triggered the alarm.
The central trial issue was whether defendant committed second-degree robbery — theft using force or the threat of force, purposely putting Cervantes in fear of immediate bodily injury — or third degree theft — exercising unlawful control over the movable property of another with purpose to deprive him thereof.
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.” The slide contained a still-shot from the movie The Shining, depicting 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 slide featured the words spoken by Nicholson in the movie as he stuck his head through the broken door — “Here’s Johnny!” The prosecutor commented that the character was “saying some very unthreatening words, ‘Here’s Johnny.’ 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. During a colloquy, the trial judge offered a curative instruction, but stated, “If I do that though, I’m underscoring again, the prosecution’s arguments.” 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.
Defendant appealed, arguing the prosecutor’s use of the PowerPoint slide during summation denied defendant a fair trial. The State admits that the PowerPoint slide was inappropriate, but they argued that it did not amount to producing an unjust result. The Court found that the reference to the Shining could have led the jury to improperly infer that physical force was used in this incident, although it was not the case. The prosecutor went far beyond the evidence to draw a parallel between defendant’s conduct and that of a horror-movie villain causing an unjust result and undermining a fair trial for the defendant.
Prosecutor misconduct during a trial can be means to denying a defendant a right to a fair trial. However, in order to preserve your rights as a defendant during trial, your attorney must object at every opportunity to preserve it for appeal. Otherwise, without proper objections, you may lose your right to appeal the issue. Make sure you hire an experienced defense attorney who is able to immediately pick up on prosecutor misconduct and state the appropriate objection.
At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.
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