Argued (A-1906-11T2) and Submitted (A-2774-11T2)
November 6, 2013.
Approved for Publication March 18, 2014.
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).
Before FISHER, ESPINOSA and O'CONNOR,
[435 N.J.Super. 250] 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.
[435 N.J.Super. 251] 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 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, 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.
We agree with defendants' first argument that the prosecutor's opening statement unfairly prejudiced defendants and, therefore, we do not reach their other arguments.
[435 N.J.Super. 252] 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 Street in Camden at approximately 7:40 p.m., the evening of January 20, 2010.
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 [435 N.J.Super. 253] 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.
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 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 [435 N.J.Super. 254] 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.
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."
[435 N.J.Super. 255] 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 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.
The same day counsel made their opening statements -- during a break in the testimony of the ...