                  NOT FOR PUBLICATION WITHOUT THE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
