NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4887-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GERALDO RIVERA, a/k/a GERARDO DIAZ

and JUAN RIVERA,

Defendant-Appellant.

____________________________________

Argued January 23, 2014 – Decided

Before Judges Grall, Nugent and Accurso.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment 

No. 11-03-0331.

Joseph J. Benedict argued the cause for 

appellant (Benedict and Altman, attorneys; 

Mr. Benedict and Philip Nettl, on the 

brief).

Nancy A. Hulett, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued 

the cause for respondent (Andrew C. Carey, 

Acting Middlesex County Prosecutor, 

attorney; Ms. Hulett, of counsel and on the 

brief).

The opinion of the court was delivered by 

GRALL, P.J.A.D.

October 10, 2014

APPROVED FOR PUBLICATION

October 10, 2014

APPELLATE DIVISION
2 A-4887-11T1

A grand jury charged defendant Geraldo Rivera with 

attempting to murder Sean and Michael Burns during a fight that

started at a bar inside a liquor store and ended in the parking 

lot. The jury acquitted defendant of those charges but 

convicted him of lesser-included offenses: with respect to Sean, 

second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); and with 

respect to Michael, fourth-degree aggravated assault, N.J.S.A.

2C:12-1b(3).1

The judge sentenced defendant to eight years' imprisonment 

for the second-degree assault, subject to terms of parole 

ineligibility and supervision required by the No Early Release 

Act, N.J.S.A. 2C:43-7.2, and to a concurrent fifteen months'

imprisonment for fourth-degree assault. The judge also imposed 

the monetary assessments and penalty mandated by N.J.S.A. 2C:43-

3.1 to -3.3, and a $3658 restitution obligation, a total of 

$4038.

Certain facts were undisputed. The fight, verbal at first, 

started after defendant questioned Sean about not leaving a tip 

for the bartender, who was then defendant's fiancée. It ended 

 

1 The grand jurors also indicted Sandeep Yadav and Sabiq Ponder 

and charged them with tampering with evidence, two counts of 

hindering apprehension and obstruction of a criminal 

investigation. N.J.S.A. 2C:28-6(a), :29-1, :29-3a(4). Prior to 

defendant's trial, Ponder was admitted to pre-trial intervention 

and Yadav pled guilty. Ponder testified for the defense at 

trial, and Yadav did not testify. 
3 A-4887-11T1

with broken bottles inside and outside the establishment; Sean 

with four knife wounds to his torso; Michael with a cut across 

his abdomen that exposed his intestines and injured his stomach; 

and defendant with two head wounds and a scar on his forehead.

The defense was self-defense. Defendant admitted to 

swinging a utility knife he carried because of his work as a 

linesman to defend himself against what he believed would be a 

fatal "stomping" from the brothers. He also admitted that he 

stabbed Sean and cut Michael in the process. Michael 

acknowledged striking defendant in the head with a piece of 

asphalt, which he claimed to have done because he saw defendant 

stabbing Sean. 

The participants in the fight - defendant, Michael and Sean 

— and their respective eyewitnesses gave widely divergent 

accounts of what happened between defendant's criticism of Sean 

and the arrival of the police. Each side cast the other as the 

aggressor, and there was no medical testimony. Thus, in 

deciding whether the State proved that defendant was not acting 

in self-defense, the jury had to decide between the conflicting 

accounts of who did what and when.

The details of the conflicting accounts are not important 

to resolution of the issues raised on this appeal. There is no 

question that the evidence and reasonable inferences, viewed in 
4 A-4887-11T1

the light most favorable to the State, provide adequate support 

for the jury's verdict. Jackson v. Virginia, 443 U.S. 307, 319, 

99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (constitutional standard 

for evidence adequate to withstand a motion for judgment of 

acquittal); State v. Reyes, 50 N.J. 454, 459 (1967) (same). All 

of defendant's claims concern the conduct of the assistant 

prosecutor who tried the case, which defendant contends deprived 

him of a fair trial. His contentions are as follows:

I. The State's violation of the [o]rder 

sanitizing his prior convictions should 

have resulted in a mistrial. (Raised 

below).

II. The State's misconduct in climbing into 

the jury box in the middle of crossexamination of State's witness should 

have resulted in a mistrial. (Raised 

below).

III. The trial court erred in permitting 

the introduction of hearsay statements 

Michael Burns made to Officer McCauley, 

which was compounded by the misuse of 

those statements in the State's 

summation. (Partially raised below).

IV. The State's comments in opening and 

summation deprived [d]efendant of a 

fair trial. (Partially raised below).

 A. The State introduced an unduly 

 prejudicial visual presentation 

 during its opening statement which 

 expressed an opinion as to 

 [d]efendant's guilt in inflammatory 

 ways. (Raised below).

 B. The State improperly vouched for the 
5 A-4887-11T1

 credibility, or lack thereof, of 

 witnesses in summation. (Not raised 

 below).

 C. The State misstated the law. 

 (Raised below).

V. Cumulative error deprived [d]efendant 

of a fair trial. 

For the reasons that follow, we conclude that the 

cumulative impact of the assistant prosecutor's conduct deprived 

defendant of a fair trial. 

 A.

The well-established principles guiding prosecutorial 

conduct are easily stated and not unique to New Jersey. "[T]he 

primary duty of a prosecutor is not to obtain convictions but to 

see that justice is done. 'It is as much [a prosecutor's] duty 

to refrain from improper methods calculated to produce a 

wrongful conviction as it is to use every legitimate means to 

bring about a just one.'" State v. Timmendequas, 161 N.J. 515, 

587 (1999) (internal citation omitted) (quoting State v. 

Farrell, 61 N.J. 99, 105 (1972) (quoting Berger v. United 

States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 

1321 (1935))).

This case demonstrates the need to stress what those 

principles require. Prosecutors must choose their tactics in 

conformity with their legal duties. Thus, they are not free to 
6 A-4887-11T1

employ a prejudicial tactic just because the precise action has 

not yet been expressly condemned by the Supreme Court. 

Similarly, when a reviewing court has declared a method improper 

in a published opinion but concluded it to be harmless error in 

that case, compliance with the prosecutor's obligation does not 

permit repetition. A finding of harmless but improper 

prosecutorial conduct cannot, consistent with a prosecutor's 

duty, be understood as a license to mimic an improper method.

In this case, the cumulative impact of the prosecutor's 

transgressions requires reversal. As the Supreme Court has 

recently explained: 

When legal errors cumulatively render a 

trial unfair, the Constitution requires a 

new trial. State v. Orecchio, 16 N.J. 125, 

129 (1954). "'[W]here any one of several 

errors assigned would not in itself be 

sufficient to warrant a reversal, yet if all 

of them taken together justify the 

conclusion that defendant was not accorded a 

fair trial, it becomes the duty of [a 

reviewing] court to reverse.'" Id. at 134 

(quoting State v. Dolliver, 150 Minn. 155, 

184 N.W. 848, 849 (1921)). If a defendant 

alleges multiple trial errors, the theory of 

cumulative error will still not apply where 

no error was prejudicial and the trial was 

fair. See State v. D'Ippolito, 22 N.J. 318, 

325-26 (1956) (rejecting application of 

Orecchio because none of alleged errors 

prejudiced defendant nor impaired fair 

trial). In assessing whether a defendant 

received a fair trial, courts are guided by 

the following principle: "'[D]evised and 

administered by imperfect humans, no trial 

can ever be entirely free of even the 
7 A-4887-11T1

smallest defect. Our goal, nonetheless, must 

always be fairness. A defendant is entitled 

to a fair trial but not a perfect one.'" 

State v. Wakefield, 190 N.J. 397, 537 (2007) 

(quoting State v. R.B., 183 N.J. 308, 333-34 

(2005)).

[State v. Weaver, ___ N.J. ___, ___ (2014) 

(slip op. at 35-36).]

Like Weaver, this "is a classic case of several errors, 

none of which may have independently required a reversal and new 

trial, but which in combination dictate a new trial." Id. at 

47. Here, as in Weaver, the error involves a constitutional 

right, and reversal is required unless we can "conclude that the 

cumulative error was harmless beyond a reasonable doubt." Id.

at 48; see Chapman v. California, 386 U.S. 18, 24, 87 S. Ct.

824, 828, 17 L. Ed. 2d 705, 710-11 (1965). 

Reversal of a conviction based on the prosecutor's conduct 

is appropriate only if that conduct was "'so egregious that it 

deprived [the] defendant of a fair trial.'" State v. DiFrisco, 

137 N.J. 434, 474 (1994) (quoting State v. Pennington, 119 N.J.

547, 565 (1990)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 

133 L. Ed. 2d 873 (1996). Stated differently, reversal is 

warranted when the prosecutor's conduct "substantially 

prejudice[s] the defendant's fundamental right to have a jury 

fairly evaluate the merits of his or her defense." State v. 

Harris, 181 N.J. 391, 495 (2004). 
8 A-4887-11T1

Our courts have previously reversed convictions based on 

the cumulative impact of a prosecutor's misconduct. See, e.g., 

State v. Frost, 158 N.J. 76, 87 (1999); State v. Hinds, 278 N.J. 

Super. 1, 19 (App. Div. 1994), rev'd on other grounds, 143 N.J.

540 (1996). Long ago, the United States Supreme Court concluded 

that a new trial is required where the prosecutor's misconduct 

"was pronounced and persistent, with a probable cumulative 

effect upon the jury which cannot be disregarded as 

inconsequential." Berger, supra, 295 U.S. at 89, 55 S. Ct. at 

633, 79 L. Ed. at 1321. 

Even when the evidence is "overwhelming," strong evidence 

of guilt can "never be a justifiable basis for depriving a 

defendant of his or her entitlement to a constitutionally 

guaranteed right to a fair trial." Frost, supra, 158 N.J. at 

87; accord State v. Smith, 212 N.J. 365, 404 (2012) (quoting 

Frost). Moreover, in a case such as this where the jury has to 

choose which of two versions of an event to credit, "it simply 

cannot be said that the evidence is overwhelming." Frost, 

supra, 158 N.J. at 87. 

Some particularized or specific rules have been recognized. 

In Berger, the United States Supreme Court explained:

It is fair to say that the average jury, in 

a greater or less degree, has confidence 

that these obligations, which so plainly 

rest upon the prosecuting attorney, will be 
9 A-4887-11T1

faithfully observed. Consequently, improper 

suggestions, insinuations and, especially, 

assertions of personal knowledge are apt to 

carry much weight against the accused when 

they should properly carry none.

[295 U.S. at 88, 55 S. Ct. at 633, 79 L. Ed.

at 1321]. 

Our Supreme Court has disapproved of any expression of 

personal or official opinion or belief that a jury could 

understand as based on something other than the evidence, 

including a belief in the defendant's guilt "unless [the 

prosecutor] makes it perfectly plain that his belief is based 

solely on the evidence that has been introduced at the trial." 

State v. Thornton, 38 N.J. 380, 398 (1962). The Court reasoned, 

"that in the minds of jurors such statements may add the weight 

of the prosecutor's official and personal influence and 

knowledge to the probative force of the evidence 

adduced . . . ." Ibid. For that reason, the Court concluded 

that such statements "creat[e] the possibility that the jurors 

consciously or unconsciously might adopt the prosecutor's view 

without applying their own independent judgment to the 

evidence." Ibid. 

Other specific forms of advocacy inconsistent with a 

prosecutor's duty have been expressly disapproved. Focusing on 

disapproved conduct in this case, prosecutors generally may not 

vouch for or bolster a State's witness, Frost, supra, 158 N.J.
10 A-4887-11T1

at 87; interfere with the jury's right to make a credibility 

determination by improperly impugning the credibility of a 

defendant's version of the facts, id. at 88-89; "comment on 

facts not shown or reasonably inferable from the evidence in the 

case," Farrell, supra, 61 N.J. at 102; or contend that the 

police have no motive to lie or face special consequences if 

they do, State v. R.B., 183 N.J. 308, 331-32 (2005); Frost, 

supra, 158 N.J. at 85. 

For ease of exposition, we address the conduct and 

principles relevant to the defendant's claims of misconduct 

separately and in the order in which the prosecutor took each 

action at trial. 

 B.

A prosecutor's opening statement should be limited to what 

the prosecutor "will prove" and "not anticipate" the 

prosecutor's summation. State v. Ernst, 32 N.J. 567, 577 

(1960). Defendant's core objection to the prosecutor's opening 

statement is that the prosecutor declared him guilty of the two 

attempted murders with which he was charged. The prosecutor did 

that twice — graphically with the last screen of the PowerPoint 

presentation accompanying his opening and orally in the final 

sentence of his opening.
11 A-4887-11T1

The PowerPoint's twenty-first and final screen contains a 

photograph showing defendant's face and neck, which is displayed 

with a bright red border. It also includes text, printed in the 

same color and density, "Defendant GUILTY OF: ATTEMPTED MURDER." 

The words "Defendant" and "GUILTY OF:" appear on separate lines 

to the right of defendant's photograph, and "ATTEMPTED MURDER" 

appears below the photograph in much larger typeface.

In overruling defense counsel's objection to the 

PowerPoint, the judge explained, "There's nothing specifically 

prejudicial in the presentation. . . . [T]his is, merely in my 

view, advocacy and the method by which Mr. Herring is presenting 

his opening statement." 

At the conclusion of the oral portion of his opening, the 

prosecutor declared defendant guilty of attempted murder a 

second time. He said, "Defendant is guilty of the attempted 

murder of a man he stabbed five times and a man [whose] 

intestines he tore out."2 Defense counsel did not object, 

perhaps because his objection to the PowerPoint was overruled. 

 

2 Sean testified that defendant stabbed him five times, but he

explained that he sustained four wounds and that one stab did 

not penetrate at all. Michael testified that his intestines 

were "hanging out of [him]," but he did not testify that his 

intestines were injured, and, as previously noted, there was no 

testimony from a medical professional. Michael also testified 

that none of his "organs were hit," but he also said a "slice 

across [his] stomach" required surgery. 
12 A-4887-11T1

Our courts have not yet addressed the use of PowerPoint

presentations during opening statements or summations in 

criminal trials in a published opinion. Other courts have, 

however, considered the matter. 

The Nevada Supreme Court has concluded that a PowerPoint, 

"as an advocate's tool, is not inherently good or bad" and that 

"its propriety depends on content and application." Watters v. 

State, 313 P.3d 243, 247 (Nev. 2013). The Court further 

determined that a PowerPoint accompanying an opening is 

permissible if "the content is consistent with the scope and 

purpose of opening statements and does not put inadmissible 

evidence or improper argument before the jury." Ibid.

We fully agree that the content, not the medium, is 

important. That view is consistent with the approach our 

Supreme Court has taken with respect to other technological 

advances used in connection with trial court proceedings. See, 

e.g., State v. Miller, 205 N.J. 109, 122 (2011) (directing that 

in "responding to a request to review testimony, the trial 

court's focus should be on the proper controls and limits needed 

to ensure a fair proceeding, not the medium used to create a 

record"). 

Faced with a pre-presentation challenge to use of a 

PowerPoint in an opening, a court should apply the law governing 
13 A-4887-11T1

opening statements. In some respects, use of PowerPoints has 

potential to advance the interests of fairness in opening 

statements because the court may direct removal of prejudicial 

material before a prosecutor displays a slide to the jury. That 

opportunity should not be lost. 

Watters involved the prosecutor's display of a PowerPoint 

slide in opening quite similar to the final slide in this 

opening. The Court considered "whether the State's use of a 

PowerPoint during opening statement that includes a slide of the 

defendant's booking photo with the word 'GUILTY' superimposed 

across it constitutes improper advocacy and undermines the 

presumption of innocence essential to a fair trial." Watters, 

supra, 313 P.3d at 245. The Court concluded that it did and 

reversed the defendant's conviction. Id. at 249. 

In Watters, the Court reasoned that the declaration of 

defendant's guilt displayed by the prosecutor was an 

impermissible expression of the prosecutor's personal opinion on 

defendant's guilt at least as, if not more, effective in 

undermining the presumption of innocence as a prosecutor's oral 

proclamation of defendant's guilt in opening. Id. at 248. 

The Court rejected the State's suggestion that declaring 

the defendant guilty in opening is just a "different way[] of 

saying" that the prosecutor will be asking the jury to find 
14 A-4887-11T1

defendant guilty. Ibid. In the Nevada Supreme Court's view, a 

declaration of the defendant's guilt, unlike an indication that 

the State will ask the jurors to find the defendant guilty, 

expresses the prosecutor's opinion. Ibid. 

For several reasons, we agree that the difference is more 

than semantic. A prosecutor's declaration of a defendant's 

guilt, at best, implies that it is the prosecutor's opinion. 

Our Supreme Court suggested that a prosecutor may state such a 

belief if he or she makes it "perfectly plain" that the belief 

"is based solely on the evidence that has been introduced at 

trial." Thornton, supra, 38 N.J. at 398. But that cannot be 

made "perfectly plain" in opening statements when no evidence 

has been presented. 

Our Supreme Court has consistently condemned conduct that 

invades the exclusive province of the jury to resolve factual 

disputes, assess credibility and decide whether the State's 

evidence establishes guilt. State v. McLean, 205 N.J. 438, 463 

(2011) (barring expert and lay opinion testimony on ultimate 

issues, which are the province of the jury); State v. Denofa, 

187 N.J. 24, 43 (2006) (declaring resolution of factual disputes 

about territorial jurisdiction, an element of a crime, to be 

within the province of the jury not the court); State v. Frisby, 

174 N.J. 583, 595 (2002) (noting that expert opinion on a 
15 A-4887-11T1

witness' credibility encroaches upon the province of the jury); 

State v. Biegenwald, 106 N.J. 13, 44 (1987) (noting that a 

judge's comments on the evidence "must be designed to avoid 

unduly influencing or otherwise invading the province of the 

jury"); see also State v. Bradshaw, 195 N.J. 493, 510 (2008) 

(directing that "[a] prosecutor should neither argue facts that 

are not in the record, nor expressly or implicitly vouch for the 

credibility of the victim"); State v. Feaster, 156 N.J. 1, 81 

(1998) (explaining that "[b]ecause it is exclusively within the 

province of the jury to find fact and evaluate witness 

credibility, a trial court may not vouch for the credibility of 

a witness"). 

It is difficult to conclude that a prosecutor's declaration 

of the defendant's guilt before the first witness is sworn would 

not have invaded the province of the jurors. It is quite 

similar to an investigating officer's giving expert or lay 

opinion testimony on the ultimate issue. Moreover, such a 

declaration in opening has the capacity to predispose the jurors 

to take the prosecutor's view of the evidence "without applying 

their own independent judgment." Thornton, supra, 38 N.J. at 

398. 

In Watters, the Court relied, in part, on a decision of the 

United States Supreme Court, which we also find persuasive, 
16 A-4887-11T1

albeit not controlling, Arizona v. Washington, 434 U.S. 497, 98 

S. Ct. 824, 54 L. Ed. 2d 717 (1977). In that case, the Court 

considered the propriety of a defense counsel's prejudicial 

opening that led to a declaration of a mistrial. Id. at 511-13, 

98 S. Ct. at 833-34, 54 L. Ed. 2d at 731-33. Relying on a case 

involving prejudicial pre-trial publicity, the Court noted that 

"[a]n improper opening statement unquestionably tends to 

frustrate the public interest in having a just judgment reached 

by an impartial tribunal" and to a greater degree than exposure 

of one juror because "the entire panel may be tainted." Id. at 

512, 98 S. Ct. at 834, 54 L. Ed. 2d at 732. The Court described 

the harm flowing from defense counsel's improper opening in that 

case as likely capable of preventing the jurors from "'act[ing] 

with the independence and freedom on the part of each juror 

requisite to a fair trial of the issue between the parties.'" 

Ibid. (quoting Simmons v. United States, 142 U.S. 148, 155, 12 

S. Ct. 171, 171, 35 L. Ed. 968, 968 (1891)). Threats to and 

interference with the independence of the jury is the harm that 

our courts have identified as inherent in conduct that invades 

the province of the jury. 

 There is a difference between invasion of the province of a 

jury occasioned by inadmissible opinion expressed by a 

testifying witness and a prosecutor's declaration of a 
17 A-4887-11T1

defendant's guilt in an opening to the jury. The difference is 

that a jury generally is given clear direction on the fact that 

an opening statement is not evidence. Importantly, in Arizona 

v. Washington, the Court did not rule out the use of a curative 

instruction as an alternative to a mistrial, as a remedial 

measure for an improper opening. Indeed, the Court recognized 

that prejudice from an improper opening may be curable in some 

circumstances. 434 U.S. at 512-13, 98 S. Ct. at 834, 54 L. Ed.

2d at 732-33. 

There is another problem presented by a prosecutor's 

declaration of a defendant's guilt of the crime charged in the 

State's opening. Such a declaration delivers a message in 

conflict with the State's obligation to convince the jury of 

defendant's guilt by proof of each element of the crime beyond a 

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. 

Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979). It does that by 

suggesting the decision has been made. It is more akin to a 

directive than advocacy, and it has the capacity to leave the 

jury with a lessened sense of its weighty responsibility as the 

sole judge of the facts and credibility.

In this case the elements of the crime the State was 

required to prove included the absence of self-defense. State 

v. Kelly, 97 N.J. 178, 200 (1984). That determination is fact 
18 A-4887-11T1

sensitive and, in this case, largely based on credibility 

determinations exclusively in the province of the jury. 

We recognize the deference owed to a judge's discretion in 

matters such as the content of opening statements and use of 

visual aids. See, e.g., State v. Tilgham, 385 N.J. Super. 45, 

53-58 (App. Div.), certif. granted limited to sentence and 

summarily remanded, 188 N.J. 269 (2006). But the question 

whether it is permissible for a prosecutor to display a slide 

containing defendant's picture and text declaring him guilty of 

the crime charged in an opening statement involves, at least in 

this case, an application of the law governing opening 

statements to undisputed facts — the content of the PowerPoint. 

It is, therefore, a matter on which we owe no deference to the 

trial judge's determination. State v. Gamble, 218 N.J. 412, 425 

(2014). And, we hold a display and oral declaration of 

defendant's guilt in an opening statement is an egregious 

interference with defendant's right to a fair trial. Such an 

interference is highly likely to "substantially prejudice[] the 

defendant's fundamental right to have a jury fairly evaluate the 

merits of" his defense. Harris, supra, 181 N.J. at 495. 

 Egregious misconduct may or may not be sufficient to raise 

a reasonable doubt about the convictions, depending on the 

efficacy of the action taken by the judge to eradicate the 
19 A-4887-11T1

apparent prejudice. See, e.g., Dolphy v. State, 707 S.E.2d 56, 

57-58 (Ga. 2011) (where the trial court sustained the defense 

objection to PowerPoint slides declaring "Defendant's Story Is a 

Lie" and asserting that "People Lie When They Are Guilty" and 

gave an "immediate corrective action, ordering that the slides 

be taken down" and an adequate curative instruction); cf. State 

v. Sucharew, 66 P.3d 59, 64 (Ariz. Ct. App. 2003) (finding no 

abuse of discretion in allowing a prosecutor to use a PowerPoint 

that consisted of pictures provided in discovery and later 

admitted into evidence at trial and descriptive text echoing the 

prosecutor's oral statements in opening to which there was no 

objection); but cf. In the matter of Personal Restraint of 

Glasmann, 286 P.3d 673, 709 (Wash. 2012) (reversing convictions 

based on the prosecutor's use of a PowerPoint in summation that 

included a "mug shot" of the defendant with accompanying text 

declaring him guilty on the ground that "the misconduct was so 

flagrant and ill intentioned that an instruction would not have 

cured the prejudice").

In this case, the only curative instruction did not 

adequately address the prejudice. As noted, the judge overruled 

defense counsel's objection to use of the PowerPoint in opening 

and gave no specific instruction to the jurors on how they might 
20 A-4887-11T1

consider the slide in issue, or for that matter any of the other 

twenty slides. 

The court did instruct the jury during the prosecutor's 

opening, but that instruction followed a different objection. 

The first sentence of the prosecutor's oral opening was: "Good 

afternoon. If we had been outside [the liquor store/bar] on a 

Tuesday night, just about [ten] o'clock, we would have seen that 

man try to kill two people." Defense counsel objected to the 

prosecutor speaking about what "we would have seen," but the 

judge directed the prosecutor to continue. 

Defense counsel objected a second time when the prosecutor 

said, "Defendant stabbed Sean five times. He might have kept 

going." The judge immediately directed the jury that an opening 

statement "is not evidence" and continued:

 Ladies and gentlemen, this is not 

evidence. [O]pening statements are what the 

lawyers are telling you they intend to 

prove. 

All right. You're not to speculate as 

to what a [d]efendant might or might not be 

doing. You have to ultimately, base your 

determination on what the evidence is. The 

opening statement, again, is not evidence. 

It's only what the State intends to prove in 

the case.

That instruction is not sufficiently pointed to allow us to 

conclude that the jurors understood it to refer to the displayed 

and oral declarations of defendant's guilt. Nor are we willing 
21 A-4887-11T1

to assume that conduct had no impact on the trial because the 

jury found defendant not guilty of attempted murder. The jury 

also had to reject defendant's claim of self-defense to find him 

guilty of the lesser-included crimes, and the prosecutor's 

opening declarations of guilt were prejudicial to its

consideration of that defense. 

 We need not decide if the opening statement and PowerPoint 

were, in themselves, sufficiently prejudicial to require a new 

trial because there was additional conduct inconsistent with the 

prosecutor's obligation to try the case fairly.

 C.

We turn to consider what can only be described as the 

prosecutor's antic during the testimony of the State's first 

witness, Sean Burns. During defense counsel's cross-examination 

of Sean, the prosecutor climbed into the jury box. When the 

prosecutor engaged in that bizarre behavior, defendant was 

assisting his attorney by operating a device used to replay 

segments of the recording of Sean Burns' statement to the 

police. Defense counsel was using segments of that recording to 

point out inconsistencies between Sean's testimony and his outof-court statements. For reasons not clear on this record, the 

device was on the prosecutor's table. Defendant, with the 

judge's prior approval, was seated there. 
22 A-4887-11T1

"For the record," the prosecutor said: "Mr. Rivera is 

actually set up [at] the State's table using [a] laptop computer 

hooked onto the projector, using the microphone from the witness 

stand in order to play the sections, and I believe Mr. Rivera is 

actually doing that." With that introduction, he advised the 

judge, "The State is trying to find somewhere to be. So I think 

just so it's clear on the record."

Indicative of the lack of context of a statement about the 

clarity of the record, the judge asked, "What's clear?" The 

prosecutor said, where Sean Burns "was looking." 

The prosecutor apparently found somewhere else to be for 

some time. He did not get into the jury box until cross and 

redirect were completed. He did that during defense counsel's 

re-cross. Defense counsel asked Sean whether he had told an 

officer that he thought defendant was "a sissy." And after 

that, defense counsel asked his client to set up the video. 

The judge addressed the prosecutor as follows: "Mr. 

Herring, can you please come out of the jury box? I don't want 

you that close to the jury." As defendant attempted to set up 

the video, the judge called the attorneys to sidebar, but he 

spoke to them off the record. 
23 A-4887-11T1

Thereafter, defendant's lawyer told his client that they 

would play the video later. The prosecutor called his next 

witness. 

The following day defense moved for a mistrial based on the 

prosecutor's untoward incursion into the jury box. Defense 

counsel noted that he had not seen the prosecutor get into the 

jury box but saw him climbing out of it when the judge addressed 

him. At oral argument in this court, the State confirmed that 

there is no entrance to the jury box from the area of the 

courtroom where counsel tables are located. 

During his argument on this motion for a mistrial in the 

trial court, defense counsel acknowledged that he did not know 

why the prosecutor climbed in but asserted that it was "highly 

inappropriate." He suggested that the prosecutor could have 

been "trying to engender [sic] himself to the jury" or "trying 

to give an indication that he was afraid of [defense counsel's] 

client." Defense counsel noted, as the judge had implied at the 

time of the incident, that there were other places the 

prosecutor could have gone. Defense counsel suggested that the 

action invaded the province of the jury. 

There is no question that the prosecutor invaded the 

"space" reserved for the jury. In defense counsel's opinion, 

the conduct was so unheard of and so improper as to warrant a 
24 A-4887-11T1

mistrial. He indicated that it was the "craziest" thing he had 

ever seen done. 

The prosecutor noted that he was just looking for a place 

to stand and write. He acknowledged that it was "probably not 

the best place for [him] to stand." He did not, however, offer 

any other explanation beyond the need for a place to stand and 

write, which he said he could do inside the jury box. 

The judge asked defense counsel to identify the prejudice, 

but defense counsel could not point to anything more specific. 

Although the judge recognized the impropriety of the 

prosecutor's action, he concluded that his prompt response and 

defense counsel's inability to identify any specific prejudice 

precluded a mistrial. The judge gave the jury no additional 

instruction on the point. 

It is difficult to identify the prejudice with any 

precision, but the prosecutor's action was, at best, a 

distracting antic inconsistent with the seriousness of the 

prosecutor's obligation to do justice and undoubtedly a 

distraction to the jurors. The fact that the prosecutor made a 

"record" in advance, suggests a plan. Although one cannot 

discern what the individual jurors actually inferred from the 

behavior, we cannot rule out the likelihood that one or more of 
25 A-4887-11T1

them would have inferred what defense counsel suggested — fear 

of his client. 

The conduct could have easily led one or more jurors to 

infer what the prosecutor allowed to be implied — that defendant 

was too dangerous or untrustworthy to be near. There is no 

question that the judge's prompt order directing the prosecutor 

to move clearly indicated that what the prosecutor did was 

wrong. It did not, however, address the potential prejudice at 

all. Thus, we conclude that this antic added to the prejudice 

engendered by the opening statement. 

 D.

Defendant's third assertion of prosecutorial misconduct is 

based on the prosecutor's cross-examination of defendant, which 

disclosed that defendant had a prior conviction "for resisting 

arrest by force." Defendant had two prior convictions for 

crimes of the third degree. One of them was for theft of 

movable property in 2004, for which he received a sentence of 

two years' probation. The other was for resisting arrest in 

2006, N.J.S.A. 2C:29-2, for which he received a sentence of five 

years' probation, with credit for time served pending 

conviction. 

Defendant's judgment of conviction for resisting stated 

that it was for third-degree resisting in violation of "N.J.S.A.
26 A-4887-11T1

2C:29-2."3 N.J.S.A. 2C:29-2 provides two distinct bases for 

elevating the grade of resisting from a crime of the fourth to a 

crime of the third degree. N.J.S.A. 2C:29-2a(3)(a)-(b). 

Pursuant to paragraph (a), it is a third-degree crime if the 

person "use[d] or threaten[ed] to use physical force or violence 

against the law enforcement officer or another." Pursuant to 

paragraph (b), the crime is elevated if the person used "any 

other means to create a substantial risk of causing physical 

injury to the public servant or another." 

Quite obviously, one can create a substantial risk of 

physical injury by means other than force. Because defendant's 

judgment did not specify which paragraph applied to him, it did 

not provide any basis for the prosecutor to ask defendant about 

resisting "by force." 

In addition to the lack of a factual basis for the 

question, the prosecutor's reference to the crime underlying the 

conviction violated a ruling made by the judge at a hearing 

outside the presence of the jury on the admissibility of 

defendant's prior conviction to impeach his credibility. 

N.J.R.E. 104; N.J.R.E. 609. At the conclusion of that hearing, 

the judge granted the prosecutor's motion to use defendant's 

 

3 That judgment is not included in the record on appeal, but it 

was discussed on the record at trial. 
27 A-4887-11T1

prior convictions to impeach defendant. But the judge also 

granted defense counsel's motion for sanitization of defendant's 

convictions — that is a ruling precluding reference to the 

underlying crimes in accordance with State v. Brunson, 132 N.J.

377, 380 (1993). 

The judge's ruling under Brunson was not ambiguous. 

Clarifying the scope of defendant's request, he asked defense 

counsel whether he wanted the jury told that defendant "was 

convicted of two separate third-degree crimes." Defense counsel 

confirmed the judge's understanding and added, "and sentenced to 

probation." The judge indicated that the prosecutor could use 

the "conviction and the sentence and the date of the conviction"

for the jury to consider "as bearing on your credibility" but 

could not use the convictions to argue defendant's 

"predisposition to commit a crime." 

At that point, the prosecutor asked if he could mention 

that defendant was on probation when he committed the crime 

underlying his second prior conviction. The judge said, 

"Certainly, the dates are admissible and the length of probation 

is admissible and the degree of the crime is admissible." 

If there were any room for confusion about the ruling on 

the prosecutor's part, Brunson forecloses it. In Brunson, the 

Court held
28 A-4887-11T1

that in those cases in which a testifying 

defendant previously has been convicted of a 

crime that is the same or similar to the 

offense charged, the State may introduce 

evidence of the defendant's prior conviction 

limited to the degree of the crime and the 

date of the offense but excluding any 

evidence of the specific crime of which 

defendant was convicted. That method of 

impeachment will insure that a prior 

offender does not appear to the jury as a 

citizen of unassailable veracity and 

simultaneously will protect a defendant 

against the risk of impermissible use by the 

jury of prior-conviction evidence.

[132 N.J. at 391-92.]

The Court elaborated:

To impeach the credibility of a 

testifying defendant, the State may 

introduce into evidence only the number, 

degree, and date of the defendant's prior 

similar convictions. When a defendant has 

multiple prior convictions, some of which 

are similar to the charged offense and some 

of which are dissimilar, the State may 

introduce evidence only of the date and 

degree of crime of all of the defendant's 

prior convictions, but cannot specify the 

nature of the offenses. Alternatively, the 

State may introduce without limitation 

evidence of only the dissimilar 

convictions. . . . 

[132 N.J. at 394.]

In requiring the sanitization of all prior convictions 

presented by the prosecutor, even when only one of them is for a 

crime "similar" to the one at issue in the trial, the Supreme 

Court explained that its purpose was "to avoid the speculation 
29 A-4887-11T1

that inevitably would occur if evidence were introduced to prove 

the theft conviction and the convictions of the unidentified 

crimes." Id. at 393.

Defense counsel was the first to violate the judge's order 

and Brunson's rule precluding reference to any crime underlying 

a prior conviction where one is similar. During his direct 

examination of his client, the lawyer referred to defendant's 

first conviction being a conviction for theft. The State did 

not object to the reference or seek the judge's guidance on how 

to proceed. Instead, the next day, during his cross-examination 

of defendant and without seeking leave, the prosecutor posed the 

offending question. He asked defendant, "In March of 2006, you 

were convicted of resisting arrest by force. Right?" (emphasis 

added). Defendant responded: "I don't know by force. I know it 

was a resisting arrest, yes." 

Defense counsel asked for a sidebar. Referencing the 

judge's ruling on Brunson, he admitted that he had 

"inadvertently brought out the fact that there was a theft." 

The judge said, "I did sanitize it." 

Defense counsel then pointed out that resisting arrest and 

the crimes at issue were crimes involving violence, and the 

judge again observed that the prosecutor had said "Force." 

Defense counsel argued that only a mistrial could cure the 
30 A-4887-11T1

prejudice given his client's claim of self-defense and the 

prosecutor's disregard of the judge's ruling.

The judge called on the prosecutor for a response, and he 

said: "[I] apologize if I misunderstood the [c]ourt's ruling. I 

believe the [c]ourt sanitized everything except the charge, the 

level of degree, the date of conviction." 

The judge recessed and returned to rule as follows:

 Despite my [o]rder, the [p]rosecutor 

revealed in his question to the jury the 

[d]efendant was convicted of a resisting 

arrest and inaccurate word by "force."

What I intend to do is to tell the jury 

that question was inaccurate and improper 

and that I will instruct the jury that 

they're not to conclude the fact that the 

[d]efendant committed a crime, any crime, 

that he's more likely to have committed the 

crime charged here simply because he 

committed a crime on another occasion. And 

the jury has a right to consider whether a 

person who has previously failed to comply 

with society's rules and demonstrated 

through criminal convictions would be more 

likely to lie on the witness stand than a 

person who was never convicted of any crime.

The judge's characterization of the prosecutor's use of the 

phrase "by force" as "inaccurate and improper" was wellwarranted. It was inaccurate because, as noted above, the 

judgment did not indicate that defendant resisted an arrest by 

force and the State had no evidence other than the judgment. It 

was "improper" because of the judge's unambiguous ruling 
31 A-4887-11T1

sanitizing defendant's convictions and the rule announced in 

Brunson. 

Nevertheless, the prosecutor said, "I did not understand 

that to be the [c]ourt's ruling." He then read from his own 

notes, which included the names of the crime but not the phrase 

by force. 

The judge asked the prosecutor, "If I grant the application 

to sanitize the conviction, what was I doing if you can bring 

out the nature of the conviction?" Instead of answering the 

judge's question, the prosecutor pointed to defense counsel's 

reference to theft on direct examination of his client. He said 

he had concluded that defense counsel had, "either for strategic 

or tactical reasons[,] overlooked the second nature of the 

conviction [sic4]. As a result, I stomped onto it." (emphasis 

added). This is another instance of egregious misconduct.

The judge denied a mistrial concluding that a curative 

instruction would eradicate the prejudice. When the jury 

returned and defendant resumed his seat in the witness box, the 

judge gave this instruction: 

 All right. Ladies and gentlemen, 

before we broke, the [p]rosecutor was asking 

the witness questions, and he was asking the 

 

4 Presumably, the prosecutor meant to say the nature of the 

second conviction.
32 A-4887-11T1

witness questions about two prior 

convictions. The [p]rosecutor's questions 

of this witness were not only improper, but 

they were inaccurate.

All right? Now, you can use evidence, 

ladies and gentlemen, evidence of a crime in 

determining the credibility or believability 

of the [d]efendant's testimony. In the 

State of New Jersey there are four degrees 

of crimes: First, second, third and fourth. 

First degree being the most serious, fourth 

degree being the least serious.

In this case, the [p]rosecutor, and I 

think even [d]efense [c]ounsel elicited that 

this [d]efendant had been convicted in the 

past of two third-degree crimes.

Now, you cannot conclude, ladies and 

gentlemen, that the [d]efendant committed 

the crime charged in this case or is more 

likely to have committed the crime charged 

in this case simply because he committed a 

crime on another occasion. You, as the 

jury, have a right to consider whether a 

person who has been previously — who has 

previously failed to comply with society's 

rules as demonstrated through a criminal 

conviction would have been more likely to 

ignore the oath requiring truthfulness on 

the witness stand than a person who's never 

been convicted of any crime.

You can consider in determining this 

issue the nature and degree of the prior 

conviction and when they occurred. Our law 

permits a conviction to be received in 

evidence only for the purpose of affecting 

the credibility of the [d]efendant and not 

for any other purpose.

So if you infer from the [p]rosecutor's 

question that this [d]efendant is more 

likely to have committed this offense merely 

because he was convicted of another crime, 
33 A-4887-11T1

you are not to make that inference. Do you 

understand that? 

Thank you. Let's go on.

 

 Because the cumulative impact of the prosecutor's conduct 

requires reversal, there is no reason to address defendant's 

claim of error in the denial of a mistrial.5 With respect to 

cumulative misconduct, the question is whether the judge's 

curative instruction was adequate. 

This curative instruction was "firm" and "accomplished 

without delay" as it should be where evidence of a defendant's 

propensity for conduct similar to the conduct charged is 

admitted. State v. Vallejo, 198 N.J. 122, 134-35 (2009). The 

problem with this curative instruction is that the judge was not 

sufficiently specific to give "clear" guidance. Ibid. The 

Supreme "Court has consistently stressed the importance of 

immediacy and specificity when trial judges provide curative 

instructions to alleviate potential prejudice to a defendant 

 

5 "The decision to grant or deny a mistrial is entrusted to the 

sound discretion of the trial court" and subject to deferential 

review. State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 

528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). It is 

an extraordinary remedy and not employed where there is "an 

appropriate alternative course of action." State v. Allah, 170 

N.J. 269, 281 (2002). It is worth noting that one of the 

Supreme Court's reasons requiring sanitization of similar 

convictions was its determination that the inherent prejudice 

was "unlikely to be cured by a limiting instruction." Brunson, 

supra, 132 N.J. at 391. 
34 A-4887-11T1

from inadmissible evidence that has seeped into a trial." Id.

at 135 (emphasis added); see id. at 135-36 (citing and 

discussing the cases). What was required in this circumstance 

was an instruction explaining precisely the permitted and 

prohibited uses of the defendant's prior convictions with 

reference to resisting and force. See State v. Marrero, 148 

N.J. 469, 495 (1997) (discussing the required instruction where 

other crimes evidence is deemed admissible for a limited purpose 

pursuant to N.J.R.E. 404(b)).

In this case, the judge did not tell the jury he was 

talking about the prosecutor's reference to a conviction for 

resisting arrest by force, which defendant had admitted, in 

part, in response to the prosecutor's improper question. 

Moreover, the judge did not direct the jury that it could not 

give any consideration or weight to the prosecutor's 

characterization of defendant's conduct as resisting arrest or 

as involving "force" for any purpose or in deciding any question 

in the case. 

"Because the jury instruction was inadequate, we have no 

alternative but to assume that the jurors" used the information 

as evidence of defendant's propensity for criminal use of force 

— a highly prejudicial consequence in this case involving a 

claim of self-defense. Vallejo, supra, 198 N.J. at 137. To be 
35 A-4887-11T1

clear, if not concise, the problem with the instruction is that 

the judge did not tell the jurors not to consider, in any way, 

the crime underlying defendant's conviction as stated by the 

prosecutor — resisting by force. Moreover, having told the 

jurors that what the prosecutor said about that crime was 

inaccurate, the judge's instruction left them to speculate about 

what defendant did to warrant that conviction, a type of 

prejudice the Court recognized in Brunson. 

Because defense counsel had a role in the error and because 

the prosecutor seemed to believe that defense counsel's 

erroneous reference to theft gave him a right to "stomp on it," 

we pause to stress that the prosecutor was wrong. In Brunson, 

the Court indicated that "[a] defendant may choose to waive the 

protection afforded by" the Court's rule of sanitization. 132 

N.J. at 392. We do not understand the Court's reference to 

waiver as assigning the prosecutor any authority to decide 

whether a defendant has waived that protection. The judge has 

the discretion and obligation to apply Brunson so as "to exclude 

evidence the prejudicial effect of which seriously compromises a 

defendant's right to a fair trial." 132 N.J. at 400 (Handler, 

J., concurring). It is not assigned to the prosecutor. Even if 

it were, under Brunson disclosure of similar crimes is not one 
36 A-4887-11T1

of the options available to the prosecutor. This instance of 

misconduct adds to the prejudice. 

E.

The prosecutor further added to the cumulative impact of 

his misconduct in summation. It is improper for a prosecutor to 

express his personal opinion on the veracity of any witness. 

State v. Marshall, 123 N.J. 1, 154 (1991). But, referring to 

Michael Burns, the prosecutor declared, "[T]he reality is he's 

not lying." The prosecutor also said, "[t]he defendant is lying 

to you." Arguably, the assertion about Michael was sufficiently 

tied to the evidence, but the more prejudicial assertion about 

defendant lying was not supported by the evidence the prosecutor 

referenced — blood on the door frame. As we understand the 

testimony, the blood was never tested and, for that reason that 

evidence did not support the prosecutor's claim that defendant 

was lying to the jury. 

The prosecutor also made improper use of evidence admitted 

for the limited purpose of explaining why the officers took 

certain steps in the investigation. He used the officer's 

testimony to bolster the credibility of Michael Burns. Text on 

two of the PowerPoint slides used in opening and summation makes 

the same use of the officers' testimony by repeating what 

Michael told them. 
37 A-4887-11T1

In addition, the PowerPoint the prosecutor used in 

summations included statements about the law of self-defense 

that were so oversimplified as to be misleading. Worse, those 

oversimplifications provided appealingly easy "take aways," as 

those schooled in PowerPoint presentations aptly put it.

 The first four of the five final slides of the PowerPoint 

used in summation were as follows: the first, a definition of 

attempted murder with "GUILTY" superimposed in typeface that 

obscures the words; the second, a slide with a caption asserting 

"CANNOT BRING A KNIFE TO A FIST FIGHT" and with text purportedly 

reciting the law on the use of deadly force that is largely 

obscured by superimposed text in a red box that advises "NO 

SELF-DEFENSE TO USE DEADLY FORCE"; the third, a slide with a 

caption asserting "CANNOT KILL AS FIRST CHOICE," with text 

largely obscured by superimposed text in a red box that repeats 

"NO SELF-DEFENSE TO USE DEADLY FORCE"; and a slide with boxes of 

text that cannot be read because they are obscured by one 

superimposed word – "GUILTY" - in typeface that is large enough 

to essentially fill the slide. 

Without question, the oversimplifications were prejudicial 

to a claim of self-defense by a defendant who claimed to have 

taken his work knife from his pocket to defend against what he 
38 A-4887-11T1

claimed he thought was an imminent and life-threatening attack 

by the Burns brothers. 

Finally, returning to his initial error in his opening, the 

prosecutor closed his summation by saying: "The [d]efendant is 

guilty of trying to kill Sean and Michael Burns. Hold him 

responsible for what he did." The final slide in the summationPowerPoint is the same as the final slide in the opening —

defendant's photograph and text declaring "Defendant GUILTY OF:

ATTEMPTED MURDER." 

We recognize that the judge instructed the jury on law and 

gave an appropriate instruction directing that what he said 

about the law was controlling. In addition, the judge directed 

the jurors to rely on their recollection of the evidence, not 

the summations of counsel. But the sheer quantity and variety 

of highly prejudicial remarks, visual displays and a courtroom 

antic, give us reason to have serious doubt about the jurors' 

capacity to follow those instructions. See State v. Manley, 54 

N.J. 259, 270 (1969) (discussing courts' need to rely on jurors' 

capacity to follow instructions); but cf. State v. Winter, 96 

N.J. 640, 649 (1984) (noting that "[t]he record lends no support 

to the suggestion that the jurors were unable to comply with the 

court's instruction"); State v. Catlow, 206 N.J. Super. 186, 193 

(App. Div. 1985) (noting that the record revealed "no reason to 
39 A-4887-11T1

believe that the jury was unable to follow the court's sharp and 

complete curative instruction"), certif. denied, 103 N.J. 465 

(1986) (quoted in Vallejo, supra, 198 N.J. at 135).

 F.

Despite the judge's efforts, the cumulative impact of the 

prosecutor's misconduct leaves us with significant doubt that 

defendant received a fair trial. Accordingly, we reverse his 

convictions and remand for further proceedings.