Opening Statements and Jury Instructions (Part 2)

Justice Albin continued in relevant part: A.J. testified that he heard a single shot from within the house. Greene and Lewis then came running out, and all jumped into the car. Inside the car, A.J. observed that Lewis was no longer wearing his baseball hat. They drove to the home of Greene’s grandmother. Once there, Greene entered his grandmother’s house. Police found a gray baseball hat with the letter “P” at Baker’s house. Forensic testing revealed Lewis’s DNA on the hat’s sweatband and a drop of Baker’s blood on the hat’s exterior.

Investigators conducted a warrant-authorized search of the home of Greene’s grandmother, Ethel Smith. While inside her home, Prosecutor’s Detective Jayson Abadia took a recorded statement. In her statement, Smith recounted that several days earlier, Greene, while sobbing, related that he and his co-defendants went to the home of a “guy” that they knew sold “weed” intending “to snatch the drugs and run.” Greene entered the home armed with a gun, but the robbery quickly went awry. The “guy” grabbed the gun and, during the ensuing struggle, “the gun went off,” discharging into the victim. Greene panicked and ran. He told his grandmother that “we did not go there to kill anybody.”

As the date of the trial approached, Detective Abadia learned that Smith had moved to Georgia. Smith did not respond to calls or messages and was served with a court order requiring her to return to New Jersey to testify at her grandson’s trial. The day after Smith was served with the court order, she spoke with Abadia by telephone. She told the detective that she would return to New Jersey but that she would not “tell any more lies,” claiming that the recorded statement she had given was false. At a pretrial hearing, Smith recanted the statement that she had given to Abadia.

Under these circumstances, the prosecutor’s office could have moved to have Ms. Smith held in jail as a material witness. This could backfire against the prosecutor if the witness then becomes angry enough to sink the prosecutor’s case when she testifies.