New Jersey Supreme Court Justice Barry Albin. Photo: Carmen Natale/ALM

The New Jersey Supreme Court ruled that a prosecutor's opening remarks over anticipated testimony from a no-show witness was enough to prejudice jurors and deprive one of the defendants facing murder charges a fair trial.

In State v. Greene, the Appellate Division previously ruled that the prosecutor's remarks deprived defendants Carey R. Greene, 29, and Tyleek A. Lewis, 32, of a fair trial, despite curative instruction from the court for the jury to ignore the statements and the fact that Greene's grandmother never showed up to testify against Greene, who allegedly confessed to her that he partook in the victim's killing.

The unanimous Supreme Court on Tuesday upheld the Appellate Division's ruling to overturn Greene's murder conviction, but reversed the Appellate Division's holding on Lewis, whom the justices said was never implicated by the prosecutor's remarks and had far more material evidence against him.

Justice Barry Albin said in the 34-page opinion that the case was a cautionary tale for prosecutors to "exercise caution," and warned that when a prosecutor "provides details of the defendant's guilt through the expected testimony of a witness who does not materialize at trial, there arises the potential for irremediable prejudice."

"It is well understood that a 'defendant's own confession is probably the most probative and damaging evidence that can be admitted against him,'" Albin wrote, quoting from case law. "A confession made to one's grandmother may have even greater persuasive power than one made to the police … despite the trial court's best efforts in providing a curative instruction."

"That the prosecutor acted in good faith, moreover, did not abate the damage done to Greene's ability to receive a fair trial … and the prosecutor's opening had the capacity to tip the scales in favor of a conviction," Albin added.

But Lewis wasn't implicated in the same way as Greene, and had left his DNA and other corroborating evidence at the scene to connect him to the crime, the court said.

"In Lewis's case, the prosecutor's opening was harmless beyond a reasonable doubt," wrote Albin. "The court therefore reverses the judgment of the Appellate Division ordering a new trial for Lewis and remands for consideration of the unaddressed issues he raised in his direct appeal."

Jennifer B. Paszkiewicz, assistant Burlington County prosecutor, argued for her office, and the state Attorney General's Office was an amicus. A spokesman for the AG's Office declined comment.

Zachary G. Markarian, an assistant deputy public defender, represented Greene. Deputy Public Defender Joseph J. Russo, who manages the statewide Appellate Section of the Public Defender's Office, issued this statement on behalf of Greene: "There is no doubt that a confession, especially to one's grandmother, is very compelling evidence. Once the jury heard the details of that confession in the prosecutor's opening statement, and the grandmother was not produced as a witness, no curative instruction could undue the overwhelming prejudice to Mr. Greene. Simply put, certain bells can never be unrung. The opening statement was especially prejudicial given the minimal evidence against Mr. Greene."

Michael Confusione of Hegge & Confusione in Mount Laurel represented Lewis. Confusione had no comment.

Alan Silber of Pashman Stein Walder Hayden in Newark, along with CJ Griffin of the same firm, argued for an amicus, the Association of Criminal Defense Lawyers of New Jersey.

"When the State was not able to produce the grandmother, the jury had heard the damaging evidence but without Greene having an opportunity to confront such testimony, which the Supreme Court found was actually the State's most effective piece of evidence," Silber said in an email. "The New Jersey Supreme Court said that such a process was unfair and violated the Due Process Clause of the 14th Amendment. Greene may be retried."

The case was argued before the court Feb. 4.

According to the decision, in opening to the jury, the prosecutor said the state would present Greene's grandmother, Ethel Smith, to whom he allegedly confessed his guilt in the July 16, 2010, shooting death of Edward Baker during a robbery and burglary involving drugs. Baker was left dead from a single gunshot wound inside his Burlington County home.

A third participant, A.J., a minor at the time who later testified as the state's key witness in accordance with a plea agreement, was outside in a vehicle as a lookout for Greene and Lewis, the court noted.

After Baker was shot, the three drove to Smith's home. It was there that a prosecutor's detective, Jayson Abadia, would later take a recorded statement from Smith.

According to the court, Smith recounted how Greene was crying when he related that he, Lewis and A.J. went to the home of a "guy" that they knew sold "weed" intending "to snatch the drugs and run." Smith said Greene told her he had entered the home armed with a gun, but the robbery quickly went awry. The "guy," according to Greene, grabbed the gun and "the gun went off" during a struggle, discharging into Baker. Greene said he panicked and ran, according to Smith. "'We did not go there to kill anybody,'" Smith said Greene told her.

But before trial was to start, Smith recanted her statement to police, citing her Fifth Amendment right against self incrimination, and refused to testify against Greene despite being assured immunity. Smith moved to Georgia and was later served with a court order requiring her to return to New Jersey to testify at Greene's trial. She told Detective Abadia by phone that she would return to New Jersey but she would not "tell any more lies," claiming the recorded statement she gave police implicating Greene was false. At a pretrial hearing, Smith recanted the statement. The trial court determined that Smith's recorded statement would be admissible when Smith testified, according to Tuesday's decision.

The trial court stated Smith would be compelled to testify under threat of contempt. The prosecutor then gave his opening statement, saying that Smith would be testifying, giving a recitation of her expected testimony, and predicting that Smith would be emotionally torn having to testify against her grandson. Smith ultimately didn't testify.

The prosecutor acknowledged that Greene's "confession is the single most important piece of evidence that could be brought against him," and argued for the admission of Smith's recorded statement despite her recanting and refusal to testify. The trial court denied admission of Smith's statement.

At the trial's conclusion, Greene's attorney requested a jury instruction addressing the issue.

With the consent of counsel, the court gave a charge stressing that the prosecutor's opening remarks "regarding Ethel Smith [are] not evidence and cannot be considered by you in your deliberations," according to the decision.

The jury returned after several days of deliberation, and found Greene and Lewis guilty of felony murder and related offenses.

The Appellate Division overturned both convictions on grounds that the prosecutor's opening statement that Greene had confessed to his grandmother was "too prejudicial to both defendants to be remedied by the court's cautionary instruction."

In the decision Tuesday, Albin wrote, "A prosecutor who describes in excessive detail the testimony he intends to elicit does so at his peril if he is unable to deliver the evidence."

"Because the testimony of witnesses is not always predictable, proceeding with a modest degree of caution in an opening statement may be the safer course when the anticipated testimony is fraught with uncertainty," Albin added.

Albin said the prosecutor's opening statement in Greene's case did not "constitute reversible error" and "no curative instruction likely could erase" the end result.

"The defendant's fair-trial rights are directly implicated," Albin said.

He said Green's counsel could have argued that Greene had suffered "irremediable prejudice" after the prosecutor's opening and Smith's refusal to testify.

"In Greene's case … even in the absence of a request for a mistrial (by his own counsel), he was denied the fair trial guaranteed to him by the Federal and State Constitutions."

But with Lewis, "the prosecutor's opening did not deny Lewis his right to a fair trial," Albin wrote.