State of New Jersey v. Damon Williams, a/k/a Danen Williams, David Bowman, and Damon Bailey

Trenton, NJ - Criminal defense attorney represented Damon Williams with considering 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.” .

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In this appeal, the Court considers whether the prosecutor's comments and use of a

particular PowerPoint slide in her closing at the trial of defendant Damon Williams

amounted to prejudicial error.

In 2014, 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. 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 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.”

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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.

On appeal, defendant argued that the prosecutor's use of the PowerPoint slide

during summation denied defendant a fair trial. The Appellate Division affirmed the

conviction. The Court granted certification limited to that issue. 241 N.J. 9 (2020).

HELD: The prosecutor's comments and use of the PowerPoint slide amounted to

prejudicial error.

1. The duty of a prosecutor is as much 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. While prosecutors are expected to make vigorous and forceful closing arguments to

juries, their comments should be reasonably related to the scope of the evidence

presented. References to matters extraneous to the evidence may constitute prosecutorial

misconduct. When a prosecutor's remarks stray over the line of permissible commentary,

courts must weigh the severity of the misconduct and its prejudicial effect on the

defendant's right to a fair trial. Courts reverse a conviction only if the prosecutorial

misconduct was so egregious as to deprive defendant of a fair trial. Factors to be

considered in making that decision include: "(1) whether defense counsel made timely

and proper objections to the improper remarks; (2) whether the remarks were withdrawn

promptly; and (3) whether the court ordered the remarks stricken from the record and

instructed the jury to disregard them.” State v. Frost, 158 N.J. 76, 83 (1999). Here, the

State admits it erred in using the PowerPoint image during summation but asserts the

error was not clearly capable of producing an unjust result. (pp. 13-16)

2. The Court reviews in detail four cases in which it considered whether prosecutorial

errors deprived the defendant of their right to a fair trial. In State v. Feaster, 156 N.J. 1

(1998); State v. Jackson, 211 N.J. 394 (2012); and State v. McNeil-Thomas, 238 N.J. 256

(2019), the Court found the prosecutors' errors to be harmless after noting such

considerations as the evidence adduced, lack of objection, use of a curative instruction,

and whether the challenged statements were fair comment on the evidence. In Frost, the

Court found the prosecutor's summation constituted prejudicial prosecutorial misconduct:

there, the prosecutor made a clear misstatement of the law, improperly vouched for a

witness's credibility, and disparaged defense counsel; despite defense counsel's

objections, moreover, the court did not strike any of the comments or provide a limiting

instruction. Those cases make clear that, in closing, prosecutors are obliged to confine

their comments to the evidence admitted and reasonable inferences drawn therefrom.

Failing to do so may imply that facts or circumstances exist beyond what has been

presented to the jury and encroach upon a defendant's right to a fair trial. (pp. 16-22)

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3. During summation, to convey the supposed threatening nature of defendant's note,

conduct, and words, the prosecutor displayed the still shot from The Shining while

making the comments noted above. Unlike in the movie scene, no act of physical

violence preceded the handing of the note or followed the handing the money to

defendant. The prosecutor nevertheless asked the jury to infer from the photograph and

the words "Here's Johnny!” that defendant's words and "actions” purposefully put

Cervantes in fear of immediate bodily injury. Comments by a prosecutor in closing that

stray beyond the evidence and the reasonable inferences therefrom are inappropriate and

improper. The prosecutor here went far beyond the evidence to draw a parallel between

defendant's conduct and that of a horror-movie villain. (pp. 23-25)

4. Defense counsel did offer a timely objection, and the trial court suggested that a

curative instruction might highlight the photograph and remarks. Also, the prosecutor's

comments were neither withdrawn nor stricken from the record. The application of the

Frost factors here does not undermine defendant's claims. (pp. 25-26)

5. Whether defendant purposely put Cervantes in fear of immediate bodily injury -- thus

supporting a conviction for robbery, not theft -- was a close call here. The prosecutor's

comments and the extra-evidentiary movie photo made it more likely that the jury would

reject the defense that only a theft occurred. Thus, the prosecutor's conduct during

summation was clearly capable of having an unfair impact on the jury's deliberations,

intruded upon defendant's right to a fair trial, and constituted reversible error. (p. 26)

6. To avoid objection or possible error, the Court encourages counsel to disclose to each

other and the court any visual aids intended to be used during closing argument, but does

not require that practice. Nevertheless, the Court reminds prosecutors that they must

ensure their strategy and commentary fall within the boundaries of permissibly forceful

advocacy. Prosecutors must walk a fine line when making comparisons, whether implicit

or explicit, between a defendant and an individual whom the jury associates with violence

or guilt. The use of a sensational and provocative image in service of such a comparison,

even when purportedly metaphorical, heightens the risk of an improper prejudicial effect

on the jury. Such a risk was borne out here. Visual aids such as PowerPoint

presentations must adhere to the same standards as counsels' spoken words. Slides may

not be used to put forward impermissible evidence or make improper arguments before

the jury. A PowerPoint may not be used to make an argument visually that could not be

made orally. The PowerPoint here fell short of that standard. (pp. 26-28)

The judgment of the Appellate Division is REVERSED, defendant’s conviction is VACATED, and the matter is REMANDED for a new trial.