On the morning of August 13, 2014, Damon Williams walked into a Bank of America branch in Merchantville, New Jersey and passed the teller a note: “Please, all the money, 100, 50, 20, 10. Thank you.”
Williams didn’t brandish a weapon or threaten to harm anyone, but the incident left teller Maria Cervantes “crying and shaking,” a colleague said.
Later, at Williams’ trial on robbery charges, the Camden County prosecutor was explaining to the jury that Cervantes could have feared she would be harmed even if Williams didn’t directly threaten her.
The prosecutor then displayed an iconic still image from the 1980 film, “The Shining,” in which deranged writer Jack Torrance, played by Jack Nicholson, chops through a wooden door with an ax in an attempt to kill his wife and son and cries out, “Here’s Johnny!”
“This guy looks creepy and he’s 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,” the prosecutor told the jury. “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 it a robbery.”
Whether the display of that photo constitutes prosecutorial misconduct, and whether it requires a reversal of Williams’ conviction, is now a question for the New Jersey Supreme Court, which agreed to take the case earlier this month. Oral arguments have not been scheduled.
Both the Office of the Public Defender, which is representing Williams, and the Camden County Prosecutor’s Office declined to comment, citing the pending appeal. Williams is currently serving a 14-year sentence in state prison for second-degree robbery.
In September, New Jersey appellate division judges Scott J. Moynihan and Stephanie Ann Mitterhoff acknowledged that the depiction of Jack Nicholson at trial was “unexpected” and noted that the prosecutor’s comments were never withdrawn or stricken from the record.
But they found that the prosecutor did not commit prosecutorial misconduct by displaying the movie image for the jury.
In their written opinion, the two judges noted that the defense attorney objected to the prosecutor’s comments about “The Shining” and that the trial judge sustained the objection. The trial judge also offered to give the jury a “limiting instruction” about the comments, but the defense attorney declined in order not to draw any more attention to the matter.
“Taken in that context, the State’s fleeting comments about The Shining at the end of a multi-day trial with ample witness testimony and documentary evidence to support the conviction, and in recognition of the considerable leeway accorded the State in closing arguments, were not so egregious as to constitute prosecutorial misconduct,” the judges wrote.
Even if the high court determines that the prosecutor did commit misconduct, they must find that it was so egregious that it deprived Williams of a fair trial in order to reverse his conviction.