                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NOS. A-1382-15T1
                                                                    A-1614-15T1

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

CAREY R. GREENE and
TYLEEK A. LEWIS,

     Defendants-Appellants.
_____________________________

                   Submitted December 5, 2018 – Decided January 28, 2019

                   Before Judges Koblitz, Ostrer and Mayer.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Burlington County, Indictment No. 14-08-
                   0877.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant Carey R. Greene (Jay L. Wilensky, Assistant
                   Deputy Public Defender, of counsel and on the briefs).

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant Tyleek A. Lewis (Michael J. Confusione,
                   Designated Counsel, on the brief).
              Scott A. Coffina, Burlington County Prosecutor,
              attorney for respondent (Nicole Handy, Assistant
              Prosecutor, of counsel and on the briefs).

              Appellant Tyleek A. Lewis filed a pro se supplemental
              brief.

PER CURIAM

       Defendants Carey R. Greene and Tyleek A. Lewis appeal from their

convictions of first-degree murder of Edward Baker while in the course of a

robbery, N.J.S.A. 2C:11-3(a)(3) (count one); first-degree murder of Baker while

in the course of a burglary, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree

robbery for inflicting injury upon Baker in the course of committing a theft while

armed with a deadly weapon, N.J.S.A. 2C:15-1(a)(1) (count three); and second-

degree burglary, N.J.S.A. 2C:18-2(a)(1) (count four). They were sentenced

simultaneously1 to terms of thirty-five years in prison subject to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7. We write one opinion to resolve both

appeals, and reverse and remand for a new trial because the State told the jury

in its opening statement that Greene had confessed to his grandmother, who

never testified. The State's disclosure was too prejudicial to both defendants to

be remedied by the court's cautionary instruction.


1
    We note that simultaneous sentencing is not authorized by the criminal code.


                                                                         A-1382-15T1
                                        2
      The State presented the following sequence of events. In the evening of

July 16, 2010, Greene, Lewis, Toney Holliday2 and a minor, A.J., had been

driving around Pemberton and Mount Holly, New Jersey in an attempt to obtain

marijuana.   They stopped at a gas station and then a Wawa near Baker's

Westampton home. All four individuals entered the Wawa to purchase drinks.

Security footage taken at the Wawa showed A.J., Greene, and Lewis. Greene

was wearing a white T-shirt.3 A.J. said Greene had visible tattoos up and down

both arms. While at the Wawa, they collectively decided to commit a robbery.

Lewis drove all four individuals to Baker's home. After exiting the car, Greene

and Lewis armed themselves with guns from a black book bag.           All four

individuals covered their faces with black bandanas. At the time, Lewis was

wearing a hat that was red and grey with a letter "P" on it. Greene, Lewis, and

Holliday entered the house, while A.J. stood outside of the house. A short time

later, Holliday came out of the house and waited outside with A.J.



2
  Holliday was tried with Greene and Lewis. The jury was unable to decide
Holliday's case and the judge declared a mistrial as to Holliday.
3
  The videotape was not provided to us, but defense counsel commented on
Greene's white T-shirt in his summation, despite the State's key witness, Ariel
Dickens, testifying that Greene was wearing an Ed Hardy shirt, "something you
hardly confuse."


                                                                       A-1382-15T1
                                       3
      Meanwhile, Baker was at his home with two women, Ariel Dickens, who

testified at trial, and another woman, who did not testify. Dickens said that on

that evening, Baker smoked marijuana and Dickens had one beer. While they

were sitting at the dining room table, two men entered the home with guns and

yelled for Baker to give them his "shit."

      Dickens observed that one man wore a reddish-orange t-shirt and had no

tattoos, while the other man wore a black polo shirt. Both men wore triangular

black masks that tied behind their heads. She had a good opportunity to look at

both men and noticed that both were African-American. Although she gave only

an approximation of his first name to police, she claimed to recognize one man

as Greene, because she had seen pictures of him on social media five years

before. She identified Greene through one photograph shown by police, and

said she was not "a hundred percent sure."        She was caught in various

contradictions on cross-examination.

      Baker stood up and confronted the two men, while Dickens and the other

woman ran out of the home through the back door. As Dickens was running,

she turned her head and saw Baker push one of the men. A few moments later,

she heard a gunshot.




                                                                       A-1382-15T1
                                        4
      Dickens re-entered Baker's home through the backdoor a few seconds

after hearing the gunshot. Baker stumbled towards her from the front door, fell

to the ground, and had difficulty breathing. She observed blood on Baker's shirt

near his stomach.

      The jury heard the 911 call placed by Dickens, in which she stated that a

person was shot at Baker's home after a robbery. She said she did not know who

the robbers were, but that two men wearing black masks fled in a black car.

      At trial, Officer Ralph Lutz testified the police found money, drugs and a

shell casing on the floor. A large amount of marijuana contained in a shoebox

was also found at the victim's home.

      Michael Wiltsey, the primary crime scene investigator with the Burlington

County Prosecutor's Office, testified that a Jesus pendant with a broken clasp

was found on the floor of the living room, and a red and grey Phillies baseball

cap on the walkway outside of the front door. Wiltsey believed that the hat had

blood on the back of it. A grey, green, and black Nike sneaker was discovered

on a mulch bed directly in front of the home. DNA profiles generated from the

items showed that Lewis was the source of DNA retrieved from the sweat band

of the hat.




                                                                       A-1382-15T1
                                       5
      A.J. testified that he pled guilty to involuntary manslaughter and agreed

to give "truthful testimony" as part of the plea agreement. In exchange, the State

recommended a seven-year sentence. A.J. testified the hat recovered at the

scene looked like Lewis's hat. A.J. also said the shoe recovered by police looked

like Holliday's shoe. A.J. testified he heard a single gunshot from his position

outside of the home. Afterwards, all four individuals ran to the car and drove to

Greene's grandmother's home in Willingboro, where Greene entered the home

by himself. According to A.J., Lewis was no longer wearing his hat when he

exited Baker's home. A.J. was cross-examined on his criminal behavior since

the plea four years ago, his drug involvement and his boastful, aggressive

Facebook posts.

      None of the defendants testified.

      Greene argues on appeal:

            POINT I:   THE PROSECUTOR COMMITTED
            MISCONDUCT       BY      INCORRECTLY
            REPRESENTING THAT THE STATE WOULD
            PRESENT EVIDENCE THAT THE DEFENDANT
            HAD CONFESSED, AND THE TRIAL COURT'S
            REMEDIAL INSTRUCTION WAS INADEQUATE,
            NECESSITATING REVERSAL.

            A.  THE PROSECUTOR'S FAILURE TO PRESENT
            TESTIMONY    THAT     THE    DEFENDANT
            CONFESSED,   AFTER   REPRESENTING    IN
            OPENING THAT HE WOULD DO SO.

                                                                         A-1382-15T1
                                          6
           B.  THE TRIAL COURT'S REMEDIATION WAS
           INADEQUATE.

           POINT II:  THE PROSECUTOR REPEATEDLY
           MISSTATED THE LAW TO DEFENDANT'S
           PREJUDICE, AND ACCORDINGLY COMMITTED
           MISCONDUCT,             BY REPEATEDLY
           CHARACTERIZING THE TRIAL AS A "SEARCH
           FOR TRUTH." U.S. CONST., AMEND. IX; N.J.
           CONST., ART. 1, PAR.[4]

           POINT III:  THE PROSECUTOR ERRED TO
           DEFENDANT'S   PREJUDICE  BY  FALSELY
           CLAIMING IN SUMMATION, IN A FELONY-
           MURDER CASE, THAT A PENDANT HAD BEEN
           TAKEN FROM THE VICTIM.

           POINT IV:   THE TRIAL COURT'S WRITTEN
           CHARGE WAS INCOMPLETE IN SIGNIFICANT
           RESPECTS, COMPELLING THE CONCLUSION
           THAT   THE    JURY   WAS  IMPROPERLY
           INSTRUCTED.

           POINT V:     THE TRIAL COURT ERRED
           PREJUDICIALLY IN DENYING A REQUESTED
           WADE HEARING AS TO A WITNESS WHO
           IDENTIFIED THE DEFENDANT.

           POINT VI: THE CUMULATION OF ERRORS
           REQUIRES REVERSAL.

           POINT VII: THE TRIAL COURT IMPOSED AN
           EXCESSIVE    SENTENCE,   NECESSITATING
           REDUCTION.


4
   Defendant does not state the paragraph number in the point heading or his
brief.
                                                                    A-1382-15T1
                                     7
       Lewis argues through counsel on appeal:

             POINT I: THE PROSECUTOR VIOLATED STATE
             v. LAND, 435 N.J. SUPER. 249, 269 (APP. DIV.
             2014), WARRANTING REVERSAL AND REMAND
             FOR A NEW TRIAL.

             POINT II: THE PROSECUTOR WENT BEYOND
             FAIR COMMENT ON THE EVIDENCE IN
             SUMMATION.

             POINT III: THE TRIAL COURT ERRED IN
             ADMITTING THE WAWA VIDEOTAPE INTO
             EVIDENCE.

             POINT IV:  THE TRIAL COURT INFRINGED
             DEFENDANT'S RIGHT TO DISCOVERY AND
             CROSS-EXAMINATION.

             POINT V:  THE TRIAL COURT ERRED IN
             DENYING A POST-VERDICT INTERVIEW OF A
             COMPROMISED JUROR.

             POINT VI:   DEFENDANT'S              SENTENCE   IS
             IMPROPER AND EXCESSIVE.

       Lewis argues in his pro se supplemental brief:5

             POINT I: IT WAS REVERSIBLE ERROR FOR THE
             JUDGE TO FAIL TO INSTRUCT THE JURY ON
             ACCOMPLICE LIABILITY, ESPECIALLY IN
             LIGHT OF THE JURY'S QUESTION SIGNALING
             ITS CONFUSION.




5
    We corrected minor typographical errors.
                                                                  A-1382-15T1
                                        8
      Greene and Lewis argue that the assistant prosecutor violated State v.

Land, 435 N.J. Super. 249, 269 (App. Div. 2014), when he informed the jury in

his opening statement that it would be hearing testimony from Ethel Smith,

Greene's grandmother. They contend that the assistant prosecutor knew that

Smith might not testify and that his comments about her anticipated testimony

were prejudicial. Additionally, Greene argues that the court's remedial jury

charge was inadequate.

                               I. Pre-Trial Proceedings.

      Prior to the start of trial, the court granted the State's motion for a Gross6

hearing regarding the admissibility of Smith's testimony. At the Gross hearing

on November 12, 2014, Detective Jayson Abadia testified that Smith made a

tape-recorded statement to police in which she stated that Greene confessed to

her that he shot the victim by accident. Abadia testified that she later changed

her statement and refused to return his calls. Smith appeared at the hearing and

testified that her recorded statement to police, stating Greene told her he went

to buy marijuana from the victim and the gun accidentally discharged, was false.



6
  State v. Gross, 121 N.J. 1 (1990). A Gross hearing is also called a N.J.R.E.
803(a)(1) hearing. See Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, cmt. 1(a) on N.J.R.E. 803(a)(1) (2018).


                                                                           A-1382-15T1
                                         9
She testified Greene never said that to her, and she had lied to police in an effort

to "help him by saying that it was an accident if he was involved in it."

       The court held that Smith's statement was reliable pursuant to Gross, 121

N.J. at 10, 17. Smith was served with a material witness order, which required

her to appear for trial. That same day, in anticipation of Smith's testimony, the

court held a Bruton7 hearing regarding the redaction of Smith's statement so that

references to Lewis and Holliday could be removed.

       The State expressed concern that Smith would invoke her Fifth

Amendment right to remain silent and explained that the assistant prosecutor

intended to discuss Smith's statement during openings. The court granted the

State's request to conduct a Rule 104 hearing. N.J.R.E. 104(a).

       On January 15, 2015, the court conducted the Rule 104 hearing. Although

defendants were present, they were not permitted to ask questions or present

argument. The court heard testimony from Smith. When asked if she recalled

giving a statement to Abadia regarding a conversation she had with Greene, she

refused to answer and invoked her Fifth Amendment right to remain silent. The

State played the tape recording of Smith's prior statement to Abadia. In the

recording, Smith told Abadia that Greene went to the victim's home to buy drugs,


7
    Bruton v. United States, 391 U.S. 123, 132 (1968).
                                                                            A-1382-15T1
                                        10
there was a scuffle over the gun, and the gun discharged. After admitting that

her voice was on the tape, she refused to answer further questions. Her basis for

refusing to answer was "because a lot of things in that statement is false." She

refused to explain any other basis upon which she was asserting her Fifth

Amendment right other than to state that she did not want to provide false

testimony. On January 20, 2015, the court held that Smith would be compelled

to testify at trial and that she could not invoke her Fifth Amendment privilege.

                                       II. Trial.

      During his opening on January 22, 2015, the assistant prosecutor stated:

            The evidence is going to show that when these four
            individuals got back in the car, they went to
            Willingboro. They didn't go back to Pemberton, they
            went to Willingboro. Specifically they went to where
            Carey Rasheed Greene's grandmother, maternal
            grandmother lived. Her name is Mrs. Ethel Smith. And
            you're going to meet Mrs. Smith during the course of
            this trial.

            And I just want to say a few words about Mrs. Smith.
            Mrs. Smith, I don't think it's a stretch to say, is in a
            difficult position. You see, because sometime after this
            event, the police went to Mrs. Smith's house, serve [sic]
            some legal papers, and Mrs. Smith got to talking to one
            of the detectives from the Burlington County
            Prosecutor's Office and she agreed to give a taped
            statement to that detective. His name is Jason [sic]
            Abadia and you're going to hear from Mrs. Smith what
            she said to Detective Abadia and I submit that what she
            said during this taped statement to Detective Abadia

                                                                        A-1382-15T1
                                      11
            was that at some point after the events of July 16th, she
            had the opportunity to talk with her grandson, Mr.
            Greene. In fact, Mr. Greene came over to her house and
            he was very upset and he told his grandmother what
            happened on July 16th, 2010. He told his grandmother
            he went to that house, that he had a gun, that there was
            a struggle between him and Eddy Baker, and that Eddy
            Baker got shot. . . .

            Now, Mrs. Smith is in a difficult position. She's in the
            position stuck between the love of her grandson and
            testifying in court and that's a tough, that's a tough
            position for Mrs. Smith. I understand that it's a difficult
            position for her and I just hope that when Mrs. Smith
            comes to the witness stand you too will appreciate the
            situation that she's in in testifying here in court.

      On February 3, 2015, the court held a Rule 104 hearing in connection with

the State's motion to admit the out-of-court statement of Smith pursuant to either

Rule 804(b)(9), as a forfeiture by wrongdoing hearsay exception, or Rule

804(b)(1)(A), as the prior testimony of a witness. N.J.R.E. 804.

      Abadia testified for the State. He explained that he appeared at Smith's

home to serve legal paperwork in September 2010, that they started talking, and

that she provided a taped statement to police. In September 2014, he tried

calling Smith again to advise her that the trial date was approaching. She did

not return his calls. He also detailed additional attempts to contact Smith and

explained that she was ultimately served with a court order to appear at trial .



                                                                          A-1382-15T1
                                       12
The following day, Abadia was able to reach Smith who told him that she would

not be attending the trial and that her initial statement was a lie.

      Smith appeared at the hearing, refused to be sworn in, claimed that her

prior statement was a lie, and did not answer questions. The court denied the

State's Rule 804(b)(9) motion, explaining that although Smith refused to make

herself available for trial, there was no evidence that Greene was responsible for

Smith's unavailability. Also, defendants were not permitted to cross-examine

Smith during the Gross hearing and the scope of the Gross hearing was more

limited than trial testimony. We granted the State leave to appeal and summarily

affirmed the decision of the trial court. State v. Holliday, No. A-4327-14 (App.

Div. Feb. 11, 2015) (slip op. at 1).

      At trial, but outside of the presence of the jury, the State called Smith as

a witness. Smith refused to be sworn in, refused to answer questions from the

State and claimed she lied in her police statement. The court held Smith in

contempt of court. Smith did not testify at trial, nor was her statement admitted.

      During the jury charge, the court provided the following remedial

instruction:

               The arguments, statements, remarks, openings and
               summations of counsel are not evidence and must not
               be treated as evidence. In that regard, during opening
               statements, the prosecutor indicated that you would

                                                                         A-1382-15T1
                                        13
            hear testimony from Ethel Smith. Ethel Smith did not
            testify in this case. Any statements the prosecutor made
            regarding Ethel Smith is [sic] not evidence and cannot
            be considered by you in your deliberations.

At trial, Greene's counsel did not object to the curative instruction, which was

consistent with counsel's requested instruction.

                             III. Opening statement.

      In Land, 435 N.J. Super. at 250-52, we reversed and remanded a matter in

which two criminal defendants failed to receive a fair trial in light of repetitive,

unsupported descriptions of facts made by the prosecutor during her opening

statement. Id. at 265-66. The prosecutor told the jury several times that they

would hear testimony from a witness who never testified despite a grant of

immunity. Id. at 250-52, 257. The prosecutor attempted to prove the allegations

against the defendants, including the charge of attempted murder, through other

competent evidence. Id. at 258.

      We noted that the prosecutor's opening statement in Land was "replete"

with descriptions of facts that were never supported. Id. at 270-71. Also, the

evidence the State presented in that case was "less than overwhelming." Id. at

250. At the time the prosecutor made the statements during the openings, there

was considerable reason to doubt whether the victim would testify. Id. at 269-

70. Even if a prosecutor acts in good faith, he or she makes the prejudicial

                                                                           A-1382-15T1
                                        14
statements at his or her own peril. Id. at 270. As a result, we reversed and

remanded, holding that the defendants did not receive a fair trial. Id. at 250,

273.

       On appeal, Greene contends the State's unequivocal statement that Smith

would testify Greene confessed to her was a direct violation of Land. The

assistant prosecutor expounded in detail about Smith's forthcoming testimony,

telling the jury Smith would explain that Greene confessed to shooting Baker

and the details of what happened. There was a strong indication prior to opening

statements that Smith would refuse to testify. In fact, the assistant prosecutor

was aware that Smith stated she would be invoking her Fifth Amendment right.

       The assistant prosecutor did not yet know whether the court would admit

Smith's statement through another mechanism because it had not ruled on the

State's motion to admit the out-of-court statement of Smith pursuant to either

Rule 804 (b)(9) or Rule 804(b)(1)(A). The assistant prosecutor had specific

knowledge that Smith could well refuse to testify.

       While defense counsel did not object during the opening statement when

the assistant prosecutor spoke of Smith's testimony, under Land a prosecutor's

good faith belief about whether or not someone will testify is not crucial because




                                                                         A-1382-15T1
                                       15
a prosecutor makes representations in opening statements at his or her own peril.

Id. at 270.

                            IV. Curative instruction.

      Not only did the assistant prosecutor violate Land based upon the remarks

he made during opening statements, but the court's curative instruction was

inadequate because it could not remediate the prejudice that defendants

experienced when the assistant prosecutor told the jury Greene confessed to his

grandmother.

      The assistant prosecutor told the jury they would be hearing testimony

from Smith that Greene confessed to her. Greatly amplifying the harm, he told

the jury that Smith was in a difficult position because she was "stuck between

the love of her grandson and testifying in court." As a result, the jury was

expecting either that Smith would testify Greene confessed to her, or Smith

would fail to testify because she loved Greene too much to reveal his confession.

After Smith failed to testify, the jury may well have concluded that Greene had

confessed to Smith, but she did not want to present evidence against her

grandson. Such compelling harm to Greene also infected Lewis' trial. As a

result, the court's instruction to disregard the assistant prosecutor's statements

about Smith was woefully inadequate. The court could not "unring the bell"


                                                                         A-1382-15T1
                                       16
sounded by the assistant prosecutor. See State v. W.L. 292 N.J. Super. 100, 116

(App. Div. 1996) (quoting Demers v. Snyder, 282 N.J. Super. 50, 58 (App. Div.

1995)) (noting curative instructions are "not always palliative or sufficient to

mitigate the damage").

      Due to the additional commentary regarding why Smith might not choose

to testify, the court's instruction failed to cure the prejudice to defendants. Nor

would any other formulation of the instruction have erased the damage done by

the assistant prosecutor's opening statement. The opening not only disclosed

extremely damaging testimony that did not materialize, but it also disclosed the

reason why the testimony might not be heard. This raises a "reasonable doubt"

that it caused the jury to reach a result it would not have reached otherwise,

especially in light of the hung jury on the third co-defendant. See State v.

Walden 370 N.J. Super. 549, 555-56, 561-62 (App. Div. 2004) (reversing where

the prosecutor recounted to the jury the statement of a witness that "[the

defendant] was the shooter," when the witness did not testify, and the prosecutor

then vouched for the honesty of a second witness in light of the non-testifying

witness's statement).

      Wawa surveillance video showed all four individuals at a location near

Baker's home. A.J. testified that Lewis and Greene entered Baker's home armed


                                                                          A-1382-15T1
                                       17
with guns. Dickens testified that an armed man she recognized as Greene had

an altercation with Baker. Both A.J. and Dickens testified that they heard a

gunshot while Greene and Lewis were in the home, and Baker died of a gunshot

wound shortly after the four individuals fled.     Moreover, there was DNA

evidence linking Lewis and Holliday to the scene. But, Greene was wearing a

white shirt in the Wawa security footage and had tattoos, contrary to Dickens'

testimony that the shooter was wearing a red shirt and had no tattoos. Her

testimony that she recognized Greene from five-year-old Facebook pages was

also not compelling evidence.     A.J. was undercut by his lack of overall

credibility. Thus, although there was strong evidence of Greene's and Lewis's

guilt, it was not undisputed. The jury did not find Holliday guilty. Due to the

contradictory exculpating evidence here, similar to Land, "[w]e 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." 435 N.J. Super at 250. The jury could have concluded that Greene

and Lewis were guilty independent of the prosecutor's unfounded opening

remarks and the court's inadequate curative instruction.       We cannot say,

however, that beyond a reasonable doubt the jury was not infected by the State's

improper opening statement.


                                                                       A-1382-15T1
                                      18
      Reversed and remanded for further proceedings.   We do not retain

jurisdiction.




                                                                A-1382-15T1
                                  19
