NOT FOR PUBLICATION WITHOUT THE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,

v.

MARTELL J. LAND, a/k/a MARTELL

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

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).

APPROVED FOR PUBLICATION

March 18, 2014

APPELLATE DIVISION

March 18, 2014
2 A-1906-11T2

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 
3 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.

 

1We now consolidate these appeals and decide them by way of this 

single opinion.
4 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 

 

2As 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 "falsein-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.
5 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.
6 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 
7 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.
8 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 
9 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
10 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.
11 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 

 

3The trial judge was not available at that time.
12 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.
13 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 
14 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 

 

4Watkins'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.
15 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 

 

5Melissa Gonzalez, who witnessed some part of the shooting, also 

called 9-1-1.
16 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.
17 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 

 

6Samad was in surgery and unavailable to give a statement.
18 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 
19 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

 

7It 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.

8Sergeant 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.

9The 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.
20 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 
21 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 

 

10Green was shown a photograph of the Uplander, which she 

identified as the van Watkins was then occupying.
22 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 
23 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 

 

11When 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."

12The 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?"
24 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 

 

13Later 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.
25 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 
26 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 
27 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 

 

14Jury selection started in early September 2011.
28 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:
29 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 
30 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 
31 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 
32 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 

 

15The experienced trial judge made this observation on a number 

of occasions throughout the trial.
33 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 
34 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.
35 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 

 

16Much 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)).
36 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 
37 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.