New Jersey Criminal Defense Attorney Blog

"[D]efendant urges that the court abused its discretion when it denied defendant's motion for a mistrial after the victim, Cesar Alva, during trial, responded to a question from the prosecutor with an answer indicating he saw defendant after the robbery on other occasions, including one occasion when defendant pointed and growled at him and another occasion when defendant choked him.... [T]he record clearly demonstrates Alva's responses were not invited by defense counsel's questions. Moreover, the answers were completely unresponsive and, at the very least, suggestive of inadmissible prior bad acts or worse, as defense counsel argued before the court, witness tampering.... Once the trial court determined that Alva's responses were 'invited' by defense counsel's questions and not 'improper' or 'prejudicial,' there was nothing to cure or to strike. The sole witness to the robbery was Alva, whose credibility was critical to the State's case. There was no other direct or indirect evidence implicating defendant other than Officer Hicks' testimony that he knew defendant from patrolling the area around the restaurant. That defendant frequented the area is hardly sufficient to sustain a robbery conviction.... Because the jury's determination of Alva's credibility was crucial to the State meeting its burden of proof beyond a reasonable doubt, the court's erroneous ruling effectively aided the State in bolstering Alva's testimony. The jury was more likely to find Alva's identification testimony more reliable when his photographic identification is considered, along with testimony that suggested on subsequent occasions, defendant had pointed and growled at him and also choked him. Thus, the court's ruling that this testimony was 'responsive,' not 'improper,' and not 'prejudicial,' was sufficiently egregious, resulting in substantial prejudice to defendant that was incapable of dissipation by other remedial measures." Dissent by Judge Espinoza.