State v. Kelly, ___ N.J. Super. ___ (App. Div. 2025). Judge Gummer wrote the panel’s opinion in this case. The panel reversed defendant’s conviction on weapons and criminal restraint charges, based on a set of facts remarkably similar to those in State v. Daniels, 182 N.J. 80 (2004).

In Daniels, the Supreme Court reversed the defendant’s conviction where the prosecutor had made the following statement during summation, which accused the defendant of tailoring his trial testimony based on what he had heard during the trial:  “Now, I said that the defendant in his testimony is subject to the same kinds of scrutiny as the State’s witnesses. But just keep in mind, there is something obvious to you, I'm just restating something you already know, which is all I do in my summation, the defendant sits with counsel, listens to the entire case and he listens to each one of the State's witness[es], he knows what facts he can't get past. The fact that he was in the SUV. The fact that there's a purse in the car. The fact that a robbery happened. But he can choose to craft his version to accommodate those facts.”

The trial judge in Daniels had charged the jury there regarding the effect of counsel’s summations:  “Regardless [of] what counsel may have said during their closing arguments or if I say anything about the evidence, which I generally do not, keep in mind it is your recollection of the evidence that should guide you as the judges of the facts. Any arguments, statements, remarks in the opening or summations of counsel are not evidence and must not be treated by you as evidence.” But as Judge Gummer summarized, the Court in Daniels held that “the prosecutor's statements were improper and the trial court’s instructions did not cure them.” The Court reversed the conviction under the “plain error” standard of review, as the defendant had not objected below to the prosecutor’s remarks.

In the Kelly case, the prosecutor made remarks in summation that were strikingly similar to those in Daniels:  “That's what happened that day, ladies and gentlemen, not what the defendant told you when he was on the stand yesterday after he sat through this entire trial, hearing the testimony of every witness, after he heard all of the evidence against him, after having time to construct a new narrative. What he told you was just a story, a story of having consent, which the victim even admitted that her very first interaction with the defendant was consensual.”

The trial judge gave the jury comparable instructions to those in Daniels, as quoted by Judge Gummer:  “[t]he comments of the attorneys on these matters were not evidence[,]” that “[a]rguments, statements, remarks, openings and summations of counsel are not evidence and must not be treated as evidence,” [and that] “[a]lthough the attorneys may point out what they think is important in this case, you must rely upon your own understanding and recollection of the evidence that was admitted during the trial. . . . Any comments by counsel are not controlling.” The State, Judge Gummer said, “concede[d] the prosecutor erred but contend[ed] reversal [was] not warranted because the prosecutor’s statements did not substantially prejudice defendant in presenting the merits of his case.”

The Appellate Division could not have disagreed more, even though, as in Daniels, the plain error rule applied due to the absence of an objection to the summation at the time of trial. “The prosecutor directly and without question overstepped the clear boundaries of acceptable vigorous advocacy set by the Court in Daniels, depriving defendant of a fair trial. The Daniels Court held ‘the prosecutor may not refer explicitly to the fact that the defendant was in the courtroom or that he heard the testimony of other witnesses, and was thus able to tailor his testimony. [182 N.J.] at 99. Despite that prohibition, that is exactly what the prosecutor did in this case. She explicitly referenced defendant sitting ‘through this entire trial,’ ‘hearing the testimony of every witness,’ and testifying ‘after having time to construct a new narrative.’ The court did not provide any specific instructions to disregard the prosecutor's comments. And like the charge in Daniels, the trial court's generic instructions that counsels’ statements were not evidence did not cure the harmful effects of the prosecutor's improper comments. Following Daniels, we are constrained to vacate the convictions in this case and remand the case to the trial court for further proceedings, including a new trial.”

Judge Gummer was careful to note that instead of making “generic” assertions about testimony tailoring, “[t]he prosecutor could have challenged defendant’s credibility using evidence in the record. But that’s not what she did. Instead, she impermissibly attacked his credibility based on his exercise of his fundamental rights to attend his trial and confront the witnesses presented against him. The comments made by the prosecutor in her summation in this case are indistinguishable from the improper comments made by the prosecutor in Daniels.”