EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, January 21, 2021

Supreme Court of New Jersey Reverses Bank Robbery Conviction Based on Prosecutor's Use of "Here's Johnny" PowerPoint From "The Shining" During Closing

It is a well known fact that Stephen King did not like Stanley Kubrick's film version of his novel, The Shining. In an opinion on Tuesday, the Supreme Court of New Jersey also expressed a dislike, not for the movie, but for the prosecutor's use of it during closing arguments.

In State v. Williams, 2021 WL 162013 (N.J. 2021), 

Damon Williams was charged with robbing a bank. In the course of the alleged robbery, defendant did not display a weapon or make a verbal threat. Instead, he passed a note to a young female teller which said, “Please, all the money, 100, 50, 20, 10. Thank you.” The central issue at trial was whether defendant committed second-degree robbery - theft using force or the threat of force - or third-degree theft - exercising unlawful control over the movable property of another.

During closing arguments,

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.” The PowerPoint slide depicted 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 photograph contained the words spoken by Nicholson in the movie scene as he stuck his head through the broken door - “Here's Johnny!” The slide also bore the heading “ACTIONS SPEAK LOUDER THAN WORDS,” a theme used by the State throughout the trial to suggest to the jury that defendant's conduct in the moments leading up to and following defendant's passing the note to the teller supported a finding of robbery when viewed in context. The photograph was not previously shown to the court or defense counsel and had not been used at trial or offered or admitted into evidence.

In finding that this was prosecutorial misconduct requiring a new trial, the Supreme Court of New Jersey held that

Unlike in the movie scene - where Jack Nicholson uses an ax to break through a locked door before saying the words “Here's Johnny!” - no act of physical violence preceded defendant handing to Cervantes the note that read “Please, all the money, 100, 50, 20, 10, Thank you.” or followed her handing the money to defendant. The prosecutor here 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.

Our jurisprudence requires “that prosecutors act in accordance with certain fundamental principles of fairness.”...As we explained in Feaster, comments by a prosecutor in closing that stray beyond the evidence and the reasonable inferences therefrom are inappropriate and improper....And in Frost, we reversed the defendant's conviction, concluding that the prosecutor's statements were “inaccurate” and “misleading.”...The prosecutor here, in an attempt to establish that Cervantes feared for her wellbeing because of defendant's conduct, went far beyond the evidence at trial to draw a parallel between defendant's conduct and that of a horror-movie villain....

We agree with defense counsel that whether defendant purposely put Cervantes in fear of immediate bodily injury - thus supporting a conviction for robbery, not theft - was a “close call.” Weighing “the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial,”...we determine the prosecutor's comments and the extra-evidentiary movie photograph “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.



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The movie has its moments, but I think it works better as dark comedy than horror. If I want to be scared, I'll take the book any day. Nothing beats the Simpsons 5th Halloween special though.

Posted by: hardreaders | Jan 21, 2021 2:37:50 PM

Kinda depends on whether the prosecutor asked the teller if she felt threatened by the note. If not, bad on him/her and maybe the majority is correct. But, really, the likelihood that this comment and picture could have affected the verdict seems pretty slim to me.

Posted by: Fred Moss | Jan 22, 2021 9:34:17 AM

On a more serious note, I had a butcher's at the full opinion, and the testimony Fred was curious about did in fact exist. But the court (it was a unanimous opinion, so no "majority" per se) still argued on p. 26 that the question was a "close call" such that the offending PowerPoint likely did have an impact.

I do tend to agree with Fred in the sense that the case probably could have gone the other way. But when you graphically compare a defendant to Jack Nicholson/Torrance—especially when it's not even a violent crime, just hitting up a bank (not condoning what the defendant did, of course)—I can see how that gets a pretty negative reaction from the court. And the prosecution conceded that the slide was inappropriate, which may have contributed to the result here.

It might have been discussed more fulsomely in the lower court opinions, but the one frustrating part for me was how little explanation the court here gave for why the evidence of threat of force was a "close call". The actual main reasoning only takes up two complete paragraphs, from partway through p. 24 to the middle of p. 25, and it doesn't really analyze the weight of the evidence at trial standing alone, i.e., without considering the PowerPoint. I would have liked to see more of that discussion. Maybe the rule is just that—as the court suggested—once you've strayed far beyond the scope of the trial evidence, it doesn't matter how strong that evidence was in its own right.

Posted by: hardreaders | Jan 23, 2021 1:17:41 PM

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