The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1906-11T2
A-2774-11T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v.
March 18, 2014
MARTELL J. LAND, a/k/a MARTELL APPELLATE DIVISION
JIHAD LAND,
Defendant-Appellant.
__________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SAMAD A. LAND,
Defendant-Appellant.
______________________________________________________________
Argued (A-1906-11T2) and Submitted (A-2774-
11T2) November 6, 2013 – Decided March 18, 2014
Before Judges Fisher, Espinosa and O'Connor.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County,
Indictment No. 11-08-1848.
Michael Confusione argued the cause for
appellant Martell Land (Hegge & Confusione,
LLC, attorneys; Mr. Confusione, of counsel
and on the brief).
The Law Offices of Jaime Kaigh, P.C.,
attorneys for appellant Samad Land (Jaime
Kaigh, of counsel and on the brief).
Nancy P. Scharff, Assistant Prosecutor,
argued the cause for respondent (Warren W.
Faulk, Camden County Prosecutor, attorney;
Ms. Scharff, of counsel and on the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
In these appeals, we consider whether defendants received a
fair trial in light of the prosecutor's opening statement, which
informed the jurors they would receive evidence from an
individual who never testified. We cannot say – in light of the
less than overwhelming evidence of guilt – that the prosecutor's
imprudent comments, even if made in good faith, failed to
prejudice defendants. We, thus, reverse and remand for a new
trial.
I
Defendants Martell Land and Samad Land were indicted and
charged with the murder of Jamal Burgess, the attempted murder
of Kareem Watkins, and other related offenses. They were
jointly tried over the course of thirteen days in September and
October 2011, and were acquitted of murder, attempted murder and
conspiracy, but convicted of the lesser-included offense of
first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), as
2 A-1906-11T2
well as second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(a) and second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b). With the merger of
defendants' convictions for possession of a weapon for an
unlawful purpose into the aggravated manslaughter convictions,
the judge sentenced defendant Samad Land to a twenty-seven-year
prison term and defendant Martell Land to a twenty-five-year
prison term, both subject to an eighty-five percent period of
parole ineligibility. In addition, the judge sentenced both
defendants to consecutive seven-year prison terms, subject to
three-year periods of parole ineligibility, on their convictions
for unlawful possession of a weapon.
Defendants separately appeal,1 and both argue: (1) the
prosecutor's opening statement exceeded the bounds of proper
advocacy and prejudiced their right to a fair trial; (2) the
judge erred in denying their motions for a new trial based on
their claim that the verdict was against the weight of the
evidence; and (3) the judge erred in denying an application to
adjourn sentencing and in imposing sentences that were
excessive. Defendant Samad Land also argues: (4) the judge
failed to adequately instruct the jury.
1
We now consolidate these appeals and decide them by way of this
single opinion.
3 A-1906-11T2
We agree with defendants' first argument that the
prosecutor's opening statement unfairly prejudiced defendants
and, therefore, we do not reach their other arguments.2
II
The thrust of defendants' appeal is their argument that the
prosecutor, in her opening statement, extensively incorporated
numerous factual statements that were never proven. This was
largely precipitated by the fact that a witness the State
anticipated would testify – Kareem Watkins – later refused to
testify despite a grant of immunity.
The relevance of this event is best understood in light of
the competing theories as to what occurred on South Eighth
2
As a result of our disposition of this first argument, we need
not consider the arguments about the sentencing proceedings as
well as the sentences imposed or the argument only Samad has
made regarding the judge's denial of his request for a "false-
in-one-false-in-all" charge. And, although a successful argument
that a verdict was against the weight of the evidence might, in
some instances, preclude a defendant's retrial, see Tibbs v.
Florida, 457 U.S. 31, 42-43, 102 S. Ct. 2211, 2218-19, 72 L. Ed.
2d 652, 661-62 (1982), defendants do not appear to make that
argument here. That is, their weight-of-the-evidence arguments
are based on the prosecutor's opening and not on a claim that
the evidence was so wanting as to preclude a finding of guilt.
For instance, defendant Martell Land argues, in contending the
verdict was against the weight of the evidence, that the
prosecutor's opening resulted in a "manifest denial of justice
under the law. . . . warrant[ing] . . . a new trial." So
viewed, we need not reach defendants' weight-of-the-evidence
arguments because we agree with their contention that the
prosecutor's opening prejudiced their right to a fair trial and
necessitates a new trial.
4 A-1906-11T2
Street in Camden at approximately 7:40 p.m., the evening of
January 20, 2010.
A
The prosecutor's opening statement adopted Kareem Watkins's
version: that defendants Martell Land and Samad Land – who are
cousins and, for clarity purposes, we will sometimes refer to
them by their first names – had a "grudge" against Watkins, knew
Watkins frequented an area of South Eighth Street in Camden,
and, that night, sat and waited for Watkins to arrive.
According to this version, Watkins arrived at South Eighth
Street and, unexpectedly, ran into a lifelong friend, Jamal
Burgess; Watkins and Burgess sat in the former's vehicle and
spoke when defendants, who had observed Watkins was "a sitting
duck," came out of their hiding place "with guns blazing." The
prosecutor further asserted that after defendants opened fire,
Burgess told Watkins he had been shot. Watkins, who had
coincidentally been looking at a handgun Burgess showed him
immediately before the shooting began, decided the best way to
help his friend was to get to the hospital and to accomplish
that by returning fire. During the gun battle that followed –
again, according to the prosecutor – Watkins observed he had
shot one of his assailants; he was eventually able to drive to
Cooper Hospital in Camden, where Burgess died.
5 A-1906-11T2
In advocating Watkins's version about the shooting, the
prosecutor recognized that during the police investigation that
immediately followed, Martell Land provided a different version
than that which the State was expected to prove through the
testimony of Watkins. That is, in her opening statement, the
prosecutor told the jury that Martell told the police he and
Samad "were walking down the street going to a relative's house
or a friend's house in the area and a van, all of a sudden, out
of the blue, for no reason, shot at them and left the area."
According to the prosecutor's opening, the investigation that
followed was intended to determine what occurred – in light of
these conflicting versions – from the location of shell casings,
the clothing of those who were shot, and other physical
evidence. The prosecutor argued to the jury that the police
"were able to corroborate that Kareem Watkins'[s] version of
events was true and that the version of events that Martell Land
gave did not match up with the physical evidence." This
assertion, by its very terms, necessarily depended upon
Watkins's testimony.
When the prosecutor finished her opening statement, both
defense attorneys objected to her statement that defendants had
"a grudge against Watkins and sought to kill him." Perhaps
prescient or perhaps simply dubious about whether Watkins would
6 A-1906-11T2
testify, counsel claimed there would be no evidence to support
the claim of a grudge and sought to have the judge require that
the prosecution explain "how she's going to prove it." The
judge declined to require a proffer, but he did instruct the
jury that what attorneys say in openings and summations is not
evidence.
Defense counsel then responded to the prosecution's
opening. In his argument, Martell's counsel asked the jury to
be cautious about the State's theory:
The way you do this is you not only listen
to what [the witnesses] have to say but you
listen to how they say it because as the
prosecutor told you, Kareem Watkins is a
convicted felon. He's a convicted drug
dealer. He's been to state prison. He's a
felon who had a weapon with him.
. . . .
Kareem Watkins is a twice-convicted drug
dealer.
. . . .
[T]he State also has decided in its infinite
wisdom that they're going to give him
immunity from prosecution. They're never
going to charge him with the fact that he
was sitting in a car with a gun and that he
shot two individuals. He's never going to
be charged with that crime as long as he
testifies here.
This is not something that you should take
as gospel from me. Listen to what happens
and listen to the evidence as it comes out.
He's got immunity from prosecution.
7 A-1906-11T2
With that characterization of Watkins, defense counsel suggested
a different theory, supported by statements Martell gave to
police, that defendants: had visited two girls in a nearby
neighborhood; were walking down South Eighth Street toward
Martell's sister's house on Ferry Avenue when caught in a
crossfire; and, in the midst of this gunfire, Martell was shot
in the upper right leg, and Samad was shot in the abdomen.
Defense counsel further argued that, after the shooting ended,
Watkins drove to the hospital and, on the way, "threw the gun
out the window that he had shot [defendants] with, . . . dropped
his friend off at the hospital, drove the car to some area in
Camden and covered it with a tarp."
Martell's attorney further argued to the jury that Watkins
gave police a statement, which contained "a couple of real
interesting facts that the prosecutor never told you in her
opening statement," including that Watkins could not identify
the shooters, because "they had masks on, they were all dressed
in black, and, lo and behold, he wasn't even shooting back at
them." In fact, as argued by Martell's attorney, Watkins told
police that it "was Burgess who did it."
Martell's attorney also referred to a prosecution witness
not mentioned in the prosecutor's opening – Diana Stratton Green
– who later identified defendants as having shot at Watkins and
8 A-1906-11T2
Burgess and who also gave other information helpful to the
State. As then argued by Martell's attorney, Green had
recently been indicted by the Camden County
Grand Jury and is being prosecuted by this
Prosecutor's Office – this Prosecutor's
Office – . . . [for] three counts of falsely
incriminating other people. This is an
eyewitness that the prosecutor's going to
ask you to rely on to present credible
testimony that the Lands were involved.
. . . .
When you hear her testimony, I suggest it's
going to make very little sense. Ask
yourselves as she testifies how she was able
to observe what she says she was able to
observe. I suggest it will make no sense at
all.
In his opening statement, Samad's attorney questioned the
credibility of Watkins and the framework on which the State's
theory of what occurred that night was based.
B
The same day counsel made their opening statements – during
a break in the testimony of the State's second witness – the
trial judge revisited the objection lodged by defense counsel
immediately after the prosecutor's opening statement. Defense
counsel again urged that the prosecutor had told the jury that
defendants had a motive to try to kill Watkins – that they had a
"grudge" against him. And defense counsel reminded the court
that the prosecutor
9 A-1906-11T2
told the jury in the opening statement that
the defendants sat and waited for the
victims. That's what she said. There's not
a scintilla of evidence, unless I missed it
in the discovery, that would support that.
You can't make stuff up, Judge.
After some discussion, the judge held that a mistrial was not
required and that he did not believe, if this motive could not
be proved, that it would require reversal of any conviction that
might follow.
At the end of the next trial day, defense counsel inquired
of Watkins's whereabouts and asked for a representation from the
State as to his location, advising the judge that they had:
endeavored . . . to locate Kareem Watkins
in an effort to take a statement from him.
We have been unable to locate him. I have
asked the prosecutor for his location and
been advised that she has given us his last
known address.
The judge ordered the prosecutor to provide the defense
information as to where Watkins could be found, to which the
prosecutor responded, "[defense counsel] wants me to represent
that I don't have a witness," but upon further discussion, the
prosecutor said:
I have no additional information other than
what I have. I do not have him in a hotel.
I do not have him in a safe house. I
indicate that this is what is being
requested, that they want –
THE COURT: You have no custody of him.
10 A-1906-11T2
[THE PROSECUTOR]: I don't have custody of
him.
THE COURT: You don't have him stashed
anywhere.
[THE PROSECUTOR]: No.
. . . .
[MARTELL'S COUNSEL]: The representation to
me was you have his last known address,
that's all we have. If that's the case I
can't ask for any more.
[THE PROSECUTOR]: That is the case.
At the end of the next trial day, the prosecutor advised
the judge that she would prefer to refrain from calling any
remaining witnesses until Watkins testified. During this
colloquy, the judge and counsel discussed the fact that the
State had applied ex parte a few days earlier for a material
witness warrant for Watkins' arrest, and Watkins had turned
himself into police that day. Because Watkins's attorney was
unavailable at that time, however, a hearing was conducted the
following day before a different judge (the motion judge),3 who,
after hearing the testimony of three law enforcement officers
and Watkins, found that: Watkins had previously been served
with a subpoena to appear for trial; he was a material witness;
he knew he was required to appear to testify; he failed to
3
The trial judge was not available at that time.
11 A-1906-11T2
appear; and he should, therefore, remain in custody. The motion
judge further directed that although Watkins was entitled to
confer privately with his own attorney, "there shall be no
discussions regarding any substantive matters relating to this
case with any members of the Camden County Prosecutor's Office
or law enforcement during his confinement."
The morning of the next trial day, the trial judge was
presented with additional difficulties. With the motion judge
having determined that Watkins was a material witness, the trial
judge was advised that another member of the firm that
represented Martell had represented Watkins in the past, raising
the potential for a conflict of interest. And, to compound
these troubles, the State that morning also presented a motion
to restrict courtroom access during Watkins's testimony. In
expressing understandable displeasure with Martell's attorney
for not having previously determined the existence of the
potential conflict – a circumstance no longer relevant – the
judge described Watkins's importance to the State's case in the
following way:
He's the main witness, the key witness.
He's the guy that was, quote, unquote, the
intended victim, according to the State, of
the shooting. He's the guy that was sitting
next to Burgess when Burgess was shot.
12 A-1906-11T2
The conflict-of-interest issue became moot when Watkins
took the witness stand outside the presence of the jury and
refused to answer any questions in light of his "constitutional
rights," which his attorney described as "his right to counsel,
his right to the Fifth Amendment and his right to due process."
The State then advised the trial judge that Watkins had been
granted immunity by the Attorney General and the Camden County
Prosecutor. Although Watkins's attorney argued that the grant
of immunity was unenforceable – because, counsel argued, it was
coerced – he also argued the grant of immunity would "not remove
his right to due process, it does not remove his right to
counsel, both of which were violated in the obtaining of [an
earlier] statement [from Watkins] and neither of which were made
clear or at least even suggested to the [A]ttorney [G]eneral or
to Your Honor." For reasons thoroughly outlined during this
lengthy colloquy, the trial judge determined that "the use
immunity and its derivative use immunity and limited use
immunity" to Watkins were enforceable, and he ordered Watkins to
testify or else be held in contempt. Watkins continued to
refuse to testify.
The next day Watkins resumed the stand – again, outside the
presence of the jury – and, in light of the grant of immunity,
the trial judge ordered Watkins to answer questions about the
13 A-1906-11T2
case. In response to each of the prosecutor's questions,
Watkins responded he was relying on his constitutional rights.
After a while, the judge determined that it was fruitless to
continue and held Watkins in contempt; he also instructed
Watkins that he could purge the contempt by advising of his
desire to testify. Watkins never made any attempt to purge the
contempt and never testified in this case.4
C
Without Watkins's testimony, the State attempted to prove
its case through: the testimony of law enforcement officers
regarding the tangible evidence gathered during their
investigation; Martell's statements, which the police secretly
recorded; video gathered from two locations near the shooting;
and the testimony of Melissa Gonzalez and Diana Stratton Green.
1. Forensic Evidence
Senior Investigator Steven T. Settles, who has since
retired, testified about the evidence collected at the scene of
the gunfire. In advance of trial, he prepared a sketch of the
area, including the location of various pieces of evidence found
4
Watkins's refusal to testify occurred outside the jury's
presence and, so, the jury never saw Watkins. No one argued
then, and no one argues now, that Watkins's refusal to testify
should have been played out in front of the jury.
14 A-1906-11T2
at the scene. The sketch suggested that twenty-five shell
casings and five spent bullets were found at the scene. He also
identified, among other things, a piece of the vehicle that
departed the scene, window glass from a vehicle, a piece of
black thermal clothing, and blood. No weapons were recovered.
Investigator Settles also testified about his inspection of
a vehicle (hereafter "the Uplander") that was apparently used by
Watkins to depart the area and later found elsewhere, covered by
a tarp. He testified that the Uplander's windows were "broken
out on both sides of the vehicle" and there appeared to be blood
inside the vehicle.
Another officer inspected an area near the intersection of
Ferry and Kossuth Avenues – approximately three blocks from the
shooting – where an ambulance had been summoned by 9-1-1 calls
made by both Green and defendant Martell Land.5 Both defendants
were treated at that location by ambulance workers for gunshot
wounds and then transported to a nearby hospital. Clothing was
obtained and bagged there as well as at the hospital. Blood
samples at this location were also gathered.
Later, while Investigator Settles was removing Samad's
clothing from an evidence bag, a bullet fell out. This
5
Melissa Gonzalez, who witnessed some part of the shooting, also
called 9-1-1.
15 A-1906-11T2
projectile as well as other ballistics evidence – including two
shell casings that were recovered from grooves in the roof of
the Uplander – were forwarded to the State Police Lab. No
fingerprints were obtained from this evidence. The ballistics
expert concluded that four weapons were involved in the
shooting.
None of the ballistic evidence directly demonstrated that
defendants had fired any shots at either Watkins or Burgess. In
short, none of this evidence called into question defendants'
theory that they were merely walking by when caught in the
middle of a gun battle between others. Indeed, some of this
evidence raised additional questions. Accepting the State's
ballistic evidence as accurate, the jury would have had to
conclude that a projectile found in the Uplander, in which
Burgess was killed, came from the same gun as the spent bullet
found among Samad's clothing. Based on this evidence, Martell's
attorney argued in his summation that the jury would have to
conclude that whoever shot at Burgess also shot at Martell – a
fact entirely inconsistent with the State's version of the facts
– unless the jury were to believe that one of the defendants not
only shot Burgess but also shot himself or his cousin.
16 A-1906-11T2
2. Martell's Statements
The State also relied on statements given by Martell that
night when Sergeant Patricia Taulane, the lead investigator,
secretly recorded their conversations. When they first spoke,
Martell was still in a hospital bed in the trauma area.6
Martell said he and Samad were walking on South Eighth
Street toward his sister's home on Ferry Avenue when he heard
gunshots and "a car whipped up" with lights that were "kinda
high, like a truck or a van." With the sound of the first
gunshot, defendants "just took off." Martell denied that either
he or Samad was in possession of a gun, and he asserted that he
and Samad ran to the corner, made a left on the next
intersecting street – Jefferson Street – and then to Kossuth
Avenue. They stopped across from a grocery store, and Martell
called 9-1-1. When Sergeant Taulane told defendant that night
that witnesses said he and Samad were "shooting back" at the
van, he denied it.
Later that night, after Martell was medically cleared,
Sergeant Taulane drove Martell back to the scene and asked him
about the route he and Samad took once the shooting started.
This conversation was also secretly recorded. His statement at
6
Samad was in surgery and unavailable to give a statement.
17 A-1906-11T2
this time about the route he and Samad had taken was consistent
with what he told Sergeant Taulane at the hospital.
3. Videotape Evidence
Police also obtained videotape from a camera at a nearby
apartment complex that was pointed toward the intersection of
South Eighth Street and Jefferson Avenue, as well as from
cameras located inside and outside a grocery store on the corner
of Kossuth and Ferry Avenues, near where defendants were treated
by paramedics before being transported to the hospital.
The images captured from the apartment complex's video
camera – recorded between 7:35 p.m. and 7:55 p.m. that night –
are not self-evident. According to Officer John Denmark, who
gathered the footage, the camera "is actually looking across . .
. Eighth Street towards Jefferson." Our examination of the
video reveals that one individual entered the frame from the
left side and moved only a few feet toward the right of the
frame. That individual then walked back to the left of the
frame and appears to fire a single shot – perhaps two – while
still in the frame; the images do not reveal what it was that
this individual may have been shooting at. Then, two
individuals – perhaps the individual who appeared to fire one or
two shots a few moments earlier and another not previously
18 A-1906-11T2
depicted in this footage7 – enter the frame from the left; these
two individuals are depicted running up what we assume is
Jefferson Avenue and out of the frame.8
Officer Denmark also obtained footage from video cameras
mounted inside and outside the grocery store at the corner of
Ferry and Kossuth Avenues. The prosecution's claim in summation
that the images depicted in this video support the State's
theory arises from the alleged similarity in clothing worn by
Martell while in the grocery store and the clothing of the
gunmen described by eyewitnesses, i.e., dark hooded sweatshirts
and blue jeans.9
7
It is not evident that the two individuals who enter the frame
at this point are armed. We emphasize that this is our
interpretation of this videotape, and the influence of our
interpretation on the disposition of this appeal may be limited,
cf., State v. Diaz-Bridges, 208 N.J. 544, 565-66 (2011), but we
also note that no witness ever identified the individuals
depicted in the apartment complex videotape.
8
Sergeant Taulane testified that Martell's recorded description
of the route he and Samad took when the shooting started is the
same route taken by the individuals in the videotape. Sergeant
Taulane also reported that Martell said he and Samad were not
armed, which conflicted with her own interpretation of the
video.
9
The prosecutor argued in summation that Martell was wearing a
jacket with the number 96 on it while in the grocery store and
that matched the jacket gathered by the investigators outside
the grocery store. Since defendants' view of the evidence does
not dispute that they were outside the grocery store after the
shooting, the grocery store video is barely probative of the
facts in dispute.
19 A-1906-11T2
4. Gonzalez's Testimony
Melissa Gonzalez testified that, on the night in question,
she had just arrived at her residence, "seven apartments down"
from the intersection of Eighth and Jefferson Streets. Gonzalez
was in the process of bringing her small child into her
apartment and laying him down on a couch when she heard what she
thought was a firecracker. When she looked up, she observed
individuals shooting handguns.
Gonzalez testified that she did not "know where the first
shots were fired from." She was shown the video taken from the
camera mounted near her location at the time, but she recognized
it provided a view from a different vantage point. In addition,
Gonzalez testified that she could not see the faces of the
gunmen and could only say in that regard that "it was dark" and
they were wearing "hoodies" with the strings "pulled down so you
couldn't see" their faces. She also observed a vehicle pull up
on a curb and drive off; she identified the vehicle as an
Uplander that she had seen in the neighborhood previously.
5. Green's Testimony
As a result of the inconclusive nature of the forensic
evidence, the absence of Watkins's testimony, and Gonzalez's
inability to see the faces of the gunmen, the State's theory
20 A-1906-11T2
that defendants shot at Watkins and Burgess largely rested on
the testimony of Diana Stratton Green. She testified that she
knew defendants, and that she also knew Burgess "basically all
[her] life." Green testified that, at approximately 6:30 p.m.
on the night in question, she was on the porch of her home on
South Eighth Street with her husband, who was conversing with
Watkins. She recounted that, approximately fifteen minutes
after Watkins returned to his vehicle, the two defendants
"[came] down shooting . . . at [Watkins's] van."10 She said
Burgess was outside Watkins's vehicle, "lean[ing] over just
talking to him."
Green testified both defendants were in possession of guns
and were shooting as they walked toward Watkins's van. She then
testified:
I just seen them firing and then right after
they started firing I seen [Burgess] had got
shot, [Watkins] grabbed him in. And then he
was backing up and he started shooting and I
just ran out my back door and ran to the
store as fast as I can, because I didn't
want to be a witness to anything.
She also testified that Watkins returned fire because she "[saw]
fire coming from" the Uplander as Watkins put it in reverse and
drove into the parking lot across the street. Following those
10
Green was shown a photograph of the Uplander, which she
identified as the van Watkins was then occupying.
21 A-1906-11T2
observations, Green asserted that she left her house and went to
a grocery store at Kossuth and Ferry Avenues "because I just
wanted it to be known that I was in that store and I wasn't a
witness[.]"
After making a small purchase at the grocery store, Green
walked outside and saw both defendants walking toward her. As
they neared, Samad fell into her arms. Green, a certified
nursing assistant, helped him to the ground and called 9-1-1;
she told the operator to hurry because Samad's complexion was
gray and his pulse was "very slim." She remained with Samad
until the ambulance arrived.
Green testified that Martell did not appear to be injured
and, while she was assisting Samad, Martell walked across the
street for a few minutes. She also testified that Martell
walked back once the paramedics arrived and said that "he shot
his self."
Green, however, did not report any of this to the police.
And when an officer knocked on her door either that night or the
next day, she did not answer. Three days later, police officers
again sought to speak to her, and she provided a statement.
Green did not tell police she had witnessed the shooting from
her front porch; instead, she reported that she was walking on
the street with her daughter and saw the gunmen, who were
22 A-1906-11T2
wearing masks. Green also gave police her maiden name instead
of her married name. She later gave a statement that she was on
her porch instead of walking on the street, that her husband was
also on the porch,11 and that the gunmen were not wearing masks.
In a statement given to police approximately nine months later,
Green provided additional detail, including, for the first time,
her claim that Martell told her he had shot himself. She
claimed fear of becoming a witness had caused her to give police
her earlier false statements.12
Green also acknowledged she had a prior criminal record,
which included a 2008 theft conviction for which she received
and had successfully completed a probationary term. In
addition, Green conceded she had been charged in a Camden County
indictment of giving a false police report, a matter still
11
When cross-examined about her husband's presence on the porch
during the shooting, Green was asked for her husband's
whereabouts. She said she did not know. She also testified
that she told the investigators that her husband is "a
fugitive."
12
The story she told as a substitute for the version she told at
trial was that she was walking down the street with her
daughter. In asserting that she was in fear of telling the
truth, Green cited the fact that she had children and was
concerned for their safety; defense counsel effectively cast
that in doubt, asking Green: "You were so afraid that you told
the police the very first time you spoke with them that your
daughter was a witness to this, you were walking her down the
street. If you were so afraid to get your family involved, why
would you have told the police your daughter was with you?"
23 A-1906-11T2
pending at the time of the trial in this matter. The judge
correctly instructed the jury that the pending indictment could
be considered as "evidence of any bias or any potential motive
or reason for [Green] to testify in a certain manner and . . .
whether she may expect or seek favorable treatment from the
State on pending charges in evaluating the credibility of her
testimony."
Green was vigorously cross-examined not only with regard to
her alleged fear of being a witness and the many inconsistent
statements she had given police, but also with the fact that she
was under indictment for, among other things, making a false
police report. In addition to expressing a generalized fear of
being a witness, Green testified her house "ha[d] been shot up"
and "somebody . . . chas[ed] [her] on December the 18th in a car
and pulled a gun out on me." Defense counsel asked whether she
believed either defendant was responsible for these alleged
occurrences. Her unresponsive answer was that, when arrested,
Martell was in the company of Mitchell Brown, the person she had
accused of these intimidating acts.13 Later, she acknowledged
the false charge for which she was indicted was made with regard
13
Later during cross-examination, Green denied she had testified
that Martell and Brown were arrested at the same time. She said
that she had earlier testified that Martell was arrested in the
same vehicle that had chased her vehicle through Camden a few
days earlier.
24 A-1906-11T2
to Brown and her alleged false report included no mention of
Martell's involvement. She also admitted the indictment charged
her with making terroristic threats to her daughter, and with
attempting to wrongly incriminate her daughter by giving false
information to the Camden County Prosecutor's Office, but denied
she hoped the prosecutor's office was "going to work a deal" for
her in exchange for her testimony in this case.
III
Toward trial's end, the parties argued the impact of the
significant variance between the State's original theory and the
evidence the jury actually heard. Proceeding line by line
through a transcript of the prosecutor's opening statement,
Samad's counsel pointed out that the prosecutor had asserted,
among other things: that defendants "had a grudge against
Kareem Watkins and sought to kill him in any way they could";
that Watkins was "a creature of habit" and had a friend in the
neighborhood that he regularly visited, and defendants knew
this; that defendants "sat and waited" for Watkins to arrive;
that, after the shooting began and Burgess was hit, Burgess "had
the forethought to tell . . . Watkins, [']I'm shot, I'm
shot[']"; that Burgess had brought a gun into Watkins's car;
that Watkins saw defendants approach his vehicle firing their
weapons; that Watkins made the decision to reach for the gun and
25 A-1906-11T2
fire at defendants to gain an opportunity to take Burgess to a
hospital; and that defendants shot at Watkins's vehicle as it
sped away. Based on these statements, Samad's counsel requested
a strong instruction from the judge to the jury – not, he said,
"a milquetoast [instruction] [that] the things attorneys say in
their openings are not evidence" – but a "point-by-point charge"
as to what it was that the prosecutor said coupled with the
judge's pronouncement that those things had not been proven:
I'm asking for a strong and powerful
curative . . . . And if you're going to
give a charge that says what counsel said in
their openings isn't evidence, I don't think
you begin to answer the bell that's rung.
You made a point to give a charge after my
opening that I objected to and thought was
inappropriate. I can't imagine that you
wouldn't give a charge that protects this
record from all the things the prosecutor
has injected in her opening that did not
come to pass.
Before ruling, the judge asked Martell's attorney whether
he "want[ed] to espouse that position" as well. Martell's
attorney responded, "[q]uite to the contrary, Judge." He stated
that he had "just had the opportunity to read the transcript and
what the prosecutor said in her opening [is] a bell . . . that
can't be unrung." When the judge then asked whether he sought a
mistrial, Martell's attorney said:
No, I don't want a mistrial. . . . I don't
want the [c]ourt at all to give curative
instructions specifically telling the jury
26 A-1906-11T2
to disregard those comments. The only
charge the [c]ourt can give is what counsel
says in their opening and their closing is
not evidence. By giving a curative
instruction you're simply highlighting what
[the prosecutor] said in her opening. I
don't know how I'm going to handle this yet
in my closing. I've just had an opportunity
to get [the transcript], and that's the
reason we asked for it, but the opening is
replete with problems here. And I certainly
do not want the charge that [Samad's
attorney] asked [for].
In response, and in reliance on State v. Carter, 54 N.J.
436, 450 (1969), the prosecutor argued that the State had acted
in good faith:
[THE PROSECUTOR]: The State went out of its
way to ensure that Kareem Watkins was going
to testify by getting him immunity. The
State went out of its way to secure his
appearance. The State went out of its way
to assure that he could not assert his Fifth
Amendment right. Everything we did we did
in good faith. There was no way to tell in
our estimation that it was going to turn out
this way.
THE COURT: Stop, stop. You had some idea.
In July[14] you made an application before me
providing a petition for immunity. You must
have had some idea you were going to have
some difficulty.
[THE PROSECUTOR]: Yeah. But, Judge, we did
that prophylactically because [Watkins]
admitted to the commission of a crime. It
doesn't mean that we thought he would
necessarily assert his Fifth. We said he
may assert his Fifth and that's why we got
14
Jury selection started in early September 2011.
27 A-1906-11T2
the immunity. It's one thing if we thought
he was going to assert his Fifth and we
didn't get him immunity. But we, in fact,
got him immunity. So I think the [c]ourt
would be hard pressed to say that we did not
make those representations in good faith.
In reliance on this claim of good faith, the prosecutor argued
against an instruction along the lines described by Samad's
attorney.
The judge, in further exploring the issue with counsel,
expressed a preliminary view he later adopted – that he should
not "whip the State in the presence of the jury." That is, the
judge stated that he would not give the point-by-point
recitation of what was theorized in the prosecutor's opening and
what the State failed to prove because "[a]ll that's going to do
is change the level of the playing field." The judge then
stated during this colloquy that he would instruct the jury that
the things attorneys say in openings and closings are not
evidence and "any comments should be disregarded if they're in
conflict with the evidence," repeating that "[i]t really would
be unfair to do anything else."
Samad's attorney lastly asserted in response that, "absent
asking for a mistrial," a remedy he and co-counsel repeatedly
eschewed, he was concerned about a failure of the judge to
specifically instruct the jury to disregard the prosecutor's
comment in opening that Burgess told Watkins he was shot:
28 A-1906-11T2
[H]earing evidence from the dead man's mouth
is extremely prejudicial. . . . With
particularity I want that comment singled
out. Never happened, isn't in this record,
totally disregard it. . . . I don't think
that's offensive to [Martell's] position.
That's the one bell that needs to be unrung
more than any other. That would be my
request.
THE COURT: I hear you. Again, to focus
like that would potentially give the jury
the impression that the [c]ourt was not
being impartial. Because ultimately it's
wagging my finger at the State. So I don't
really think that singling out any comment
by the [c]ourt – now certainly I'm not going
to foreclose your arguments that the
investigation was shoddy, rush-to-judgment
type of stuff or that the State made these
wild claims and never came through. I can't
stop you from doing that. But I'm not going
to give any lawyer the upper hand or
opportunity to use what the [c]ourt says as
a lever to secure an upper hand on your
adversary. That would be grossly unfair.
Again, my job is to keep a level playing
field. Now, I grant you, some of those
statements are rather precise and in light
of the evidence that I've heard or lack
thereof, somewhat troubling. But, again,
nobody is disputing [the prosecutor] acted
in good faith.
Martell's counsel concurred with the particular instruction
sought by Samad's counsel, who continued to argue, in response
to the judge's belief in the importance of his appearing to the
jury to be impartial, that:
The prosecutor created this problem.
Whether you begin to craft a curative or
don't craft one and you say you don't want
to give an advantage to one attorney or the
29 A-1906-11T2
other, you're not. She [the prosecutor]
did. She put the comments on the record,
not you. Your job as umpire, for want of a
better description, is to call it down the
middle. One side has created a problem. If
the charge you have to give hurts that side,
if they created the problem, it's the rights
of Samad Land I'm concerned with, Judge, and
they've been abridged. May I stand up in my
closing and put a bunch of things that are
not part of the record into the record? Of
course I can't. Why isn't it a level
playing field? That's what the prosecutor
did. I'm asking for relief.
The judge rejected this plea as well:
So in this particular instance, although it
was a little bit predictable that Watkins
was not going to testify, despite the fact
he did have immunity, certainly nobody is
questioning [the prosecutor's] good faith in
this particular instance.
And, in the end, the judge only charged on this aspect that
what attorneys say in their opening and closing statements is
not evidence:
Arguments, statements, remarks, openings and
summations or closings of counsel are not
evidence and must not be treated as
evidence. Although the attorneys might have
pointed out what they thought was important
in this case, you must rely solely upon your
understanding and recollection of the
evidence that was admitted during the trial.
Whether or not a defendant has been proven
guilty beyond a reasonable doubt is for you
to determine based on all of the evidence
presented during the trial. Any comments by
attorneys is not controlling. It's your
sworn duty to arrive at a just conclusion
after considering all of the evidence which
30 A-1906-11T2
was presented during the course of the
trial.
Defendants were acquitted of murder and attempted murder
but convicted of aggravated manslaughter and weapons offenses.
Their motions for a new trial, which also relied on a
reiteration of the arguments posed by counsel at trial regarding
the prosecutor's opening statement, were denied.
IV
To repeat, defendants claim the right to a new trial
because the prosecutor's opening statement articulated a theory
of defendants' culpability based on a detailed description of
evidence never presented. In responding to this, the State
recognizes that "under the circumstances and with the benefit of
hindsight it may have been more prudent for the prosecutor to
restrict her opening comments regarding Watkins'[s] anticipated
testimony," but the State also insists that the prosecutor did
not act in bad faith and that defendants were not harmed.
The principles we apply are familiar. A prosecutor's
opening statement "should provide an outline or roadmap of the
State's case" and "should be limited to a general recital of
what the State expects, in good faith, to prove by competent
evidence." State v. Walden, 370 N.J. Super. 549, 558 (App.
Div.), certif. denied, 182 N.J. 148 (2004). Both at trial and
31 A-1906-11T2
in its arguments in this court, the State chiefly emphasizes the
lack of any evidence of the prosecutor's bad faith. The absence
of bad faith, however, does not provide quite the shield the
State suggests. The principles espoused in our case law
regarding consideration of a prosecutor's good faith arise from
a concern that not every statement by a prosecutor at variance
with the proofs should constitute grounds for reversal and that
the public should not suffer the consequences of a reversal
"because of a prosecutor's dereliction." State v. Torres, 328
N.J. Super. 77, 94 (App. Div. 2000).
As revealed by the colloquy from which we have liberally
quoted, at the time the opening was delivered there was
considerable reason to doubt whether Watkins would testify.15 No
one doubted then – or now – that without Watkins much of what
the prosecutor asserted during her opening could not be proven.
The prosecutor provided extensive details of defendants' alleged
"grudge" against Watkins and the other specific allegations
never proven when only an outline or a roadmap of what the State
intended to prove was required. The State's ill-advised opening
demonstrated a level of imprudence that cannot be tolerated when
pitted against defendants' right to a fair trial. In other
15
The experienced trial judge made this observation on a number
of occasions throughout the trial.
32 A-1906-11T2
words, as we held in the quite similar cases of Torres and
Walden, a new trial will be required as the only sensible means
of redressing the prejudice caused to defendants even when
actual bad faith may be absent. Walden, supra, 370 N.J. Super.
at 558 (holding that even if "the prosecutor acted in good faith
. . ., he made the prejudicial statement at his peril"); Torres,
supra, 328 N.J. Super. at 94-95 (recognizing that a new trial
will be required in such instances, even in the absence of bad
faith, because there are means through which the prosecutor
could have avoided the risk). Defendants should not bear the
consequences of the prosecutor's poor judgment in assuming
Watkins's availability; to the contrary, the impact of such an
event on the jury's consideration of the issues should be
resolved in favor of the accused if our dedication to the right
to a fair trial is to have any meaning.
We reject the State's argument that the prejudice was
lessened by the judge's instructions to the jury that the
attorneys' statements did not constitute evidence. We
appreciate the judge's attempts to be fair and impartial. But,
despite that intent, the field had already been tilted by the
State when the prosecutor uttered unnecessarily detailed and
eventually unproved factual allegations. Ultimately, we
conclude that no instruction – not even a point-by-point
33 A-1906-11T2
description, which the judge refused to give, of the things the
State had promised but failed to prove – could have righted
things. We emphasize that, in like circumstances, a trial judge
should endeavor to level the playing field even if it results in
providing instructions that might appear critical to the party
that, like the prosecutor here, had given an opening statement
replete with descriptions of facts never supported.
We also reject the notions that the jury's acquittal of
both defendants on the first-degree murder charge demonstrates
it was not influenced by the improper opening statement or that
the jury fully adhered to the judge's general instruction about
attorneys' statements. As we have observed, the entire tenor of
the trial was skewed by the State's description during opening
statements of the facts that would be elicited from Watkins.
Without Watkins, the State was left to prove defendants'
culpability through the limited evidence provided by Melissa
Gonzalez, the testimony of Diana Stratton Green, who, at the
time she testified, had been indicted by the same prosecutor's
office for making a false report to police in another matter,
and whose credibility was otherwise seriously questioned, and
whatever inferences the jury could draw from the testimony of
law enforcement officers and the videotape gathered from two
locations, which we have previously described.
34 A-1906-11T2
It is enough that the opening statement could have
contributed to the verdict to warrant a new trial where, as we
have demonstrated, the evidence of guilt was far from
overwhelming. See State v. Bradshaw, 392 N.J. Super. 425, 438-
39 (App. Div. 2007), aff’d on other grounds, 195 N.J. 493
(2008). In taking pains to examine the entire factual record in
evaluating the "capacity" of the opening statement to have an
"improper impact," State v. Johnson, 46 N.J. 289, 291 (1966), we
are compelled to conclude that the judge's general instruction –
that what attorneys say is not evidence – "did not remove the
prejudicial effect" of the prosecutor's unproven factual
allegations "from the minds of the jury," State v. Bankston, 63
N.J. 263, 272 (1973).16 Our dedication to a criminal justice
16
Much has been written about the impact of opening statements on
juries, see Shari Seidman Diamond et al., Juror Reactions To
Attorneys At Trial, 87 J. Crim. L. & Criminology 17, 27-28
(1996), and many experienced attorneys have expressed their view
that cases are won and lost at this stage, id. at 27 n.29; see
also Donald E. Vinson, The Psychology of Winning Strategy 171
(1986) (asserting that "research on the impact of the opening
statement consistently reveals that as many as 80 to 90 percent
of all jurors have reached their ultimate verdict during or
immediately after opening statements"). Studies have also
suggested "opening statements inconsistent with the evidence may
influence verdicts by causing jurors to recall the evidence
inaccurately." Diamond, supra, at 28 (citing Thomas A.
Pyszczynski et al., Opening Statements in a Jury Trial: The
Effect of Promising More Than the Evidence Can Show, 11 J.
Applied Soc. Psychol. 434, 435 (1981)).
35 A-1906-11T2
system that values an accused's right to a fair trial requires
nothing less than a new trial.
In the final analysis, events were set in motion when the
prosecutor incautiously made extensive representations to the
jury that the State would prove certain facts that could only be
proven through the testimony of a witness she had reason to
believe would not appear. Those factual assertions, which
mischaracterized the nature and quality of the State's proofs,
imperiled defendants' right to a fair trial. In reaching this
conclusion, we must recognize that the prosecutor's arguments to
the jury were not those of any ordinary advocate. The
prosecutor "represents the State whose interest is served by an
untainted judgment firmly rooted in facts alone." State v.
West, 29 N.J. 327, 338 (1959). And, while prosecutors, "within
reasonable limits, are afforded considerable leeway in making
opening statements," State v. Williams, 113 N.J. 393, 447
(1988), ultimately prosecutors are "obligat[ed] . . . to seek a
fair trial," West, supra, 29 N.J. at 338, not just convictions.
That is the prosecutor's obligation. Our obligation is to
ensure that every individual accused of a crime is provided with
a fair trial.
The prosecutor's opening statement caused the scales to
careen toward the State's side by allowing the jury to
36 A-1906-11T2
anticipate and perhaps even assume the truth of those
assertions. The judge's instructions to the jury did not
ameliorate, and it is unlikely that any additional instructions
could have ameliorated, the prejudice caused by the prosecutor.
Simple justice and the appearance that justice is being done
compel the awarding of a new trial to both defendants.
Reversed and remanded for a new trial.
37 A-1906-11T2