The New Jersey Supreme Court concluded with the following in relevant part: The Court reviews the evidence presented and stresses that the State’s case against Greene was far from overwhelming. The Court also notes that counsel’s participation in requesting and crafting the curative instruction does not make the defense complicit in inviting or acquiescing in an error — the prosecutor’s opening. Counsel could have and should have sought a mistrial if they believed that their clients had suffered irremediable prejudice after Smith refused to testify. The Court does not encourage counsel to delay seeking relief until after the jury returns a verdict. That form of strategic gamble may backfire and is not condoned.
In Greene’s case, however, even in the absence of a request for a mistrial, he was denied the fair trial guaranteed to him by the Federal and State Constitutions. Lewis stands in a different position from Greene. His name was not mentioned in the prosecutor’s remarks concerning Smith’s expected testimony, and the State’s case against Lewis included his DNA and the victim’s blood on the baseball hat left at the scene — the hat that A.J. testified Lewis wore on the night of the home invasion. The prosecutor’s opening did not deny Lewis his right to a fair trial. As to Greene, the Appellate Division is affirmed and the case is remanded for a new trial. As to Lewis, the Appellate Division is reversed and the matter is remanded to them for consideration of Lewis’s other appellate arguments.
Here, the Court is likely responding to the appellate prosecutor’s argument that Smith’s attorney’s failure to move for a mistrial should foreclose his appellate arguments for reversal. Had the appellate prosecutor’s argument been accepted, Smith would have to pursue post-conviction relief as a means to reverse his conviction. An interesting issue after the remands will be whether Greene chooses to offer testimony against Smith now that Smith’s position has improved with the reversal and Greene’s has gotten worse with the appellate remand.