In State v. Murphy, 412 N.J. Super. 553 ( App. Div. 2010), the defendant had been charged and convicted of possession of CDS. The defendant appealed alleging that the prosecutor has made improper remarks during her closing statement and that the trial court had erred when it permitted the prosecution to impeach the credibility of the defendant using a 17 year old conviction.
In her closing statement, the prosecutor personally vouched for the credibility of the officer who testified against the defendant, indicating that he had no reason to lie in his testimony. When defense counsel objected to the remarks, the trial judge said, in full hearing of the jury, that the remark was a “fair comment” on the evidence. The Appellate Division noted that when reviewing allegedly improper remarks, the court must evaluate the prosecutor’s remarks in the context of the tenor of the trial and the degree of responsiveness of both counsel and the court to the improprieties when they occurred in order to determine when the defendant was denied a fair trial. The Appellate Division found that the remark was improper and was not a harmless error. Because the judge called the remark a “fair comment,” the jury may have been improperly influenced in their determinations of credibility and since the trial essentially would be decided on the basis of credibility of witnesses, this was not simply a harmless error.
The 17 year old conviction was for possession of CDS with intent to distribute. Since the old conviction was so similar to the case at hand, the trial judge sanitized the conviction and only allowed the State to elicit the fact of the conviction, the degree of the crime, and the date of the conviction. The Appellate Division found that the previous conviction did not meet the “serious crimes” standard set out in State v. Sands, 76 N.J. 127 (1978). Under N.J. Rule of Evidence 609, the probative value of the conviction was vastly outweighed by its prejudicial value. Again, because the outcome of the trial would be decided by determinations of credibility, the erroneous admission of the previous conviction was not a harmless error.