State v. Greene
| Decision Date | 23 June 2020 |
| Docket Number | 082536,A-96 September Term 2018 |
| Citation | 233 A.3d 361,242 N.J. 530 |
| Parties | STATE of New Jersey, Plaintiff-Appellant, v. Carey R. GREENE and Tyleek A. Lewis, Defendant-Respondents. |
| Court | New Jersey Supreme Court |
Jennifer B. Paszkiewicz, Assistant Prosecutor, argued the cause for appellant State of New Jersey (Scott A. Coffina, Burlington County Prosecutor, attorney; Jennifer B. Paszkiewicz, of counsel and on the briefs, and Nicole Handy, Assistant Prosecutor, on the briefs).
Zachary G. Markarian, Assistant Deputy Public Defender, argued the cause for respondent Carey R. Greene (Joseph E. Krakora, Public Defender, attorney; Zachary G. Markarian, of counsel and on the briefs, and Alison Perrone, First Assistant Deputy Public Defender, on the briefs).
Michael Confusione, Designated Counsel, argued the cause for respondent Tyleek A. Lewis (Joseph E. Krakora, Public Defender, attorney; Michael Confusione, on the briefs).
Evgeniya Sitnikova, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Evgeniya Sitnikova, Trenton, of counsel and on the brief).
Alan Silber argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; Alan Silber, Hackensack, and CJ Griffin, on the brief).
In opening to a jury, a prosecutor may give a general statement of the evidence the State intends to present to prove the defendant's guilt. When the opening describes particularized 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.
In the murder trial of defendants Cary Greene and Tyleek Lewis, the prosecutor opened to the jury that the State would present as a witness Greene's grandmother, to whom he allegedly confessed his guilt in the shooting death of the victim. The prosecutor gave a detailed description of the grandmother's expected testimony and a prediction of the emotional struggle she would encounter as a witness against her grandson.
Before trial, Greene's grandmother recanted the statement that she gave to the police. At a hearing before the trial court, the grandmother asserted her Fifth Amendment right against self-incrimination. Despite the court's order compelling her to testify with an assurance of immunity, the grandmother refused to do so, resulting in the court holding her in contempt and jailing her. To remediate any prejudice from the prosecutor's failure to produce the grandmother, with counsels' consent, the court instructed the jury that the prosecutor's opening statement concerning the expected testimony of Greene's grandmother was not evidence or to be considered in its deliberations.
Defendants Greene and Lewis were convicted of murder and related charges.
The Appellate Division overturned the convictions of both defendants. It found that the prosecutor's opening statement, informing the jury about Greene's confession to his grandmother, was highly prejudicial and that the court's curative instruction was inadequate.
The Appellate Division could not conclude "beyond a reasonable doubt the jury was not infected by the State's improper opening statement."
We affirm the overturning of Greene's conviction and reverse the overturning of Lewis's conviction. It is well understood that a "defendant's own confession is probably the most probative and damaging evidence that can be admitted against him." Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (quoting Bruton v. United States, 391 U.S. 123, 139, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (White, J., dissenting)). A confession made to one's grandmother may have even greater persuasive power than one made to the police. The prosecutor's detailed account of Greene's incriminating statement to his grandmother was not likely forgotten by the jury, despite the trial court's best efforts in providing a curative instruction. See Bruton, 391 U.S. at 132 n.8, 88 S.Ct. 1620. That the prosecutor acted in good faith, moreover, did not abate the damage done to Greene's ability to receive a fair trial, particularly because the evidence against him was not overwhelming and the prosecutor's opening had the capacity to tip the scales in favor of a conviction.
We come to a different result in the case of Lewis. The prosecutor's reference to the grandmother's expected testimony did not implicate Lewis. Additionally, the State presented a more compelling case against Lewis, which included DNA evidence connecting him to the crime and other independent corroborating evidence of his guilt. Unlike in the case of Greene, we conclude that in Lewis's case the prosecutor's opening was harmless beyond a reasonable doubt.
Accordingly, we affirm the judgment of the Appellate Division ordering a new trial for Greene, and we reverse the judgment of the Appellate Division ordering a new trial for Lewis and remand for consideration of the unaddressed issues he raised in his direct appeal.
In August 2012, defendants Greene, Lewis, and Toney Holliday were indicted on charges of murder during the commission of a robbery and burglary, N.J.S.A. 2C:11-3(a)(3) ; first-degree robbery while armed with a deadly weapon, N.J.S.A. 2C:15-1(a)(1) ; and second-degree burglary, N.J.S.A. 2C:18-2(a)(1). The State alleged that Greene, Lewis, and Holliday killed Edward Baker in his home during a robbery. A fourth participant in the crime, A.J., a minor at the time, testified as the State's key witness in accordance with a plea agreement.
The factual record is based on the proceedings at trial. The events surrounding the shooting death of Baker were recounted to the jury by A.J., who accompanied his co-defendants, and Ariel Dickens, who was in Baker's residence at the time.
On the evening of July 16, 2010, Greene, Lewis, Holliday, and A.J. were driving around Burlington County in search of marijuana when one of them suggested that they "go rob someone." Lewis then drove the car to Baker's residence, the intended target of the robbery. Once there, Greene and Lewis retrieved guns from a book bag, and all four exited the car, their faces covered with black bandanas. Lewis was wearing a gray hat with a "P" imprinted on it. Greene, Lewis, and Holliday entered the residence -- although Holliday left shortly afterward and remained outside with A.J.
When the men entered, Baker was watching television with two female friends, Ariel Dickens and Courtney Zabala. According to Dickens, the two armed men with black-bandana masks yelled, Baker stood up and confronted the two men, pushing one of them, while Zabala and Dickens fled through a back door. A few moments later, Dickens heard a gunshot. She then returned, and as Baker walked toward her, he fell to the ground, struggling to breathe. The stomach area of his shirt was bloodstained.
Dickens called 9-1-1, reporting that Baker had been shot by two men wearing black masks who fled in a black car. When asked by the 9-1-1 operator, "Who did it?" she replied, "I don't know." Paramedics arrived at the scene and took Baker to the hospital, where he was pronounced dead. Later that evening, detectives interviewed Dickens at the police station. For the first fifty-five minutes of the interview, Dickens made no mention of the name of any of the perpetrators. During an interview break, Dickens spoke with Zabala. After doing so, she told the detectives that she recognized one of the robbers as Greene.1 She said that she connected Greene's face with a Myspace photo she had seen five years earlier and a Facebook photo two months earlier. She conceded, however, that she was not one-hundred percent certain about the identification.
Dickens stated that Greene was wearing a red-orange t-shirt and the other assailant a black polo shirt, and that neither man had tattoos on his arms or wore a hat. A video from a nearby Wawa store, however, recorded Greene and Lewis present in the store approximately twenty minutes before the home invasion, both wearing white t-shirts. The video footage also showed that Greene had tattoos up and down his forearms and Lewis had on a gray baseball hat with a letter "P" -- points corroborated by A.J.
A.J. testified that, while he and Holliday waited outside Baker's home, he heard a single shot from within the house. Greene and Lewis then came running out, and all four jumped into the car. Inside the car, A.J. observed that Lewis was no longer wearing his baseball hat and that Holliday was missing a sneaker. They drove to the home of Greene's grandmother in Willingboro. Once there, Greene entered his grandmother's house with the book bag and returned about five minutes later. The four young men then proceeded to Pemberton, where they had begun their night's journey.
A search of Baker's house by the police uncovered a large amount of cash; drugs, including a large amount of marijuana; and a shell casing. Outside the front door, the police found a gray baseball hat with the letter "P" and a Nike sneaker. Forensic testing revealed Lewis's DNA on the hat's sweatband and a drop of Baker's blood on the hat's exterior. Although submitted to the State's laboratory, the sneaker was not tested for DNA.
The defense sharply attacked A.J.'s credibility as a cooperating witness, pointing out his motives for currying favor with the State. To avoid a felony murder charge with a potential minimum thirty-year sentence, A.J. struck a plea agreement with the State. In exchange for his testimony against Greene, Lewis, and Holliday, the State allowed A.J. to plead guilty to a manslaughter charge with a potential seven-year prison term and then postponed his sentence until after he gave his trial testimony. For the approximately four years before trial, A.J. remained free on bail. During that period, he was...
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