In
State v. Land, the appellate division opinion written by Judge Fisher
reversed a first degree aggravated manslaughter and possession of a weapon for
unlawful purpose convictions when the prosecutor in its opening statement cited
facts and testimony of a witness which the prosecutor had reason to believe
would not be testifying in the case.
Nonetheless
the prosecutor knowing this, recited facts during her opening statement that
could only be testified to by the unavailable witness. The appellate division did not buy the
State’s argument that the prosecutor was not sure that the witness would not
testify. In fact, at the time of trial,
although the witness was granted immunity, refused to testify at trial, and
none of the facts which the prosecutor claimed would come in through this
witness never came in.
The
appellate division held that even if the comments during the opening were made
in good faith, and coupled with the fact that their was less than overwhelming
evidence of guilt, the court was constrained to reverse the conviction .
This
case stands for the proposition that criminal defense counsel must listen
carefully to prosecutor’s opening statement and make the appropriate objects at
trial, and if necessary, on appeal.
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