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.