NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

After a joint trial, a jury convicted defendants Anthony Ardis and Paul Bazela of four counts each of offenses arising out of activities relating to their positions at the Passaic Valley Sewerage Commission ("PVSC"). The offenses concerned appliance installations, repairs, and other odd jobs that were performed by PVSC employees during work hours at the homes of Ardis's mother and his girlfriend under the supervision of Bazela.

Following the guilty verdicts, Ardis and Bazela moved for a new trial, arguing that the manner in which the joint trial had proceeded was unfairly prejudicial to each of them individually in several respects. The trial court agreed that both defendants had been denied a fair trial and that their convictions must therefore be vacated. On leave granted, the State now appeals the court's decision mandating a new trial for each defendant.

For the reasons that follow, we affirm the trial court's grant of a new trial to defendant Ardis but reverse the grant as to defendant Bazela. The court had ample grounds to afford such relief to Ardis, who had twice moved unsuccessfully prior to joint trial to sever the charges against him from those against Bazela. The record supports the court's finding that Ardis was manifestly prejudiced by the cumulative impact of two important aspects of the trial: (1) the dramatic opening statement of Bazela's attorney, in which he told the jurors that Ardis had met with Bazela and directed him to have these personal services performed during business hours on "company" time, an alleged meeting the State concedes was never supported by any evidence produced at the trial; and (2) undue restrictions imposed upon Ardis's counsel in cross-examining key PVSC employees who testified for the State.

By contrast, we are unpersuaded that Bazela, who never objected to being tried together with Ardis, is likewise entitled to have his verdict set aside. The specific grounds of unfair prejudice that Bazela asserts are not sufficiently compelling to amount to a miscarriage of justice. We therefore reverse the trial court's order granting Bazela a new trial.

I.

The State's proofs at trial, which included the testimony of twelve witnesses, elicited the following facts and circumstances. In general, neither Ardis nor Bazela disputed that certain odd jobs and personal services had been performed at these private residences by PVSC workers during work hours. Instead, they essentially disputed who had directed those activities, and the surrounding circumstances, including whether the tasks were required to be completed on "company" time.

Background

The PVSC was established by statute in 1902. See L. 1902, c. 49, p. 195 (now codified at N.J.S.A. 58:14-2). It maintains as a wastewater treatment plant for forty-eight municipalities within Essex, Passaic, Union, Hudson and Bergen counties. The PVSC services approximately 1.5 million New Jersey residents, and handles up to 330 million gallons of waste daily. The agency operates the fifth or sixth largest wastewater treatment plant in the country with an annual budget of about $160 million, funded primarily through user charges paid by the residents of the serviced municipalities. As of the time of trial in 2014, the PVSC employed nearly 500 workers. They are considered State employees.

During the time of the charged acts occurring in the years 2007-2009, Ardis held three positions at the PVSC. He was the PVSC's director of management services, the clerk of its commissioners, and the agency's ethics liaison officer. In essence, Ardis was the "number two person" at the PVSC from 2005 through 2010, subordinate only to the agency's then-executive director.

As part of his role as PVSC's management services director, Ardis oversaw most of its administrative functions, including human resources, finance, and purchasing. Although the maintenance workers did not generally report to him directly, Ardis did have "some relations" with all of the agency's "operating areas."

Bazela began working at the PVSC in 1993 as a carpenter, where he rose through the ranks over the years to higher positions. During the timeframe covered by the indictment, Bazela was employed as the operations supervisor of the PVSC's maintenance department, a position he had held since 2006.

As operations supervisor, Bazela managed his department and could recommend salary changes and promotions for those who worked under him. Bazela was responsible for overseeing the use of tools, equipment, and vehicles owned by the PVSC. Bazela did not report directly to Ardis, although Ardis had general oversight of the agency's operations as its senior administrator.

One of the State's key witnesses, Joseph Mamary, also worked in the PVSC's maintenance department. Mamary personally took part in completing the odd jobs that gave rise to the indictment. Bazela was Mamary's direct supervisor during the relevant time frame. Bazela was responsible for assigning jobs, which Mamary stated was done each morning upon the workers' arrival. Bazela also reviewed and approved the paperwork required for staff vacations and other requests for time off from work.

Mamary and the other workers in the maintenance department were described at trial as "eight hour employees," meaning that they were expected to work eight hours per day, forty hours per week, and (presumably subject to vacation) fifty-two weeks per year, at a prescribed wage rate. Each employee was required to work from 7:00 a.m. to 3:30 p.m. and was afforded one unpaid thiry-minute lunch period, as well as two paid fifteen-minute breaks during the day. Timekeeping records had to be approved by the employee's individual supervisor at the end of every pay period. The employees were generally not required to "punch in" or "punch out" for lunch, and were permitted to leave the PVSC's facilities during their free time.

In addition to their specified allotment of sick and vacation days, PVSC employees were afforded the opportunity to take either overtime pay or "time due" (the equivalent of what is commonly known as "comp time") for hours they worked in excess of the forty-hour weekly requirement. The arrangement known as "time due" allowed employees, with approval from their supervisor, to credit the hours against other weeks' hourly requirements in lieu of overtime pay. Prior to 2010 the PVSC had no formal policy for restricting or tracking the use of "time due."

Mamary recalled at trial three separate occasions when Bazela asked him to perform certain odd jobs off-site. Those off-site activities, along with two additional incidents established by another witness, formed the crux of the State's case.

The Microwave Installation

The first improper off-site activity charged by the State occurred in 2008. It involved the services of Mamary along with two other PVSC employees, Fernando Braga and an electrician, Scott Pengitore. Mamary and Braga recalled that on the day in question after finishing the employees' regular morning meeting, Bazela instructed them that they were to accompany him and Pengitore to Ardis's mother's house in Paterson. According to Mamary, Bazela explained that they were going there to perform a "little carpenter work and replac[e] an exhaust fan." Mamary further recalled that they also installed a microwave at the mother's house the same day.

After receiving this assignment, Mamary and Pengitore gathered up their work tools and got into a PVSC truck. Mamary stated that none of those PVSC employees punched out on the time clock before leaving the PVSC's facility in Newark.

According to Mamary, the employees arrived at the Paterson house mid-morning and were greeted at the door by Ardis's mother. All four men entered the house, fully uniformed. Ardis's mother reportedly did not ask the men who they were or why they were there.

The actual labor provided on this occasion involved Mamary and Braga removing certain kitchen items, including an exhaust fan, and patching the resulting hole in the wall using sheetrock from the PVSC. Pengitore converted the electrical wiring from the removed exhaust fan into an outlet.

In total, Mamary estimated that the men worked for approximately two hours at Ardis's mother's house. By Mamary's estimates, the drive from the PVSC's facility in Newark to the house in Paterson took thirty minutes, one-way.

Mamary and Braga testified that they were not offered any pay for this work, that they took their normal lunch that day, and that they did not use up any vacation time, personal time, or time due.

Pengitore's testimony essentially confirmed Mamary's account. However, because Pengitore worked in a different department from the others, his recruitment for the task followed a slightly different path. According to Pengitore, Bazela approached Pengitore's supervisor in the middle of the morning sometime in 2008, and had a brief private conversation in that supervisor's office. After that alleged conversation, Bazela told Pengitore to come along with the crew to the Paterson home, and Pengitore complied. Pengitore did not believe that he punched out before leaving the PVSC facility.

According to Pengitore, upon arriving at Ardis's mother's house, he went into the basement. He did so to check the electrical panel to ascertain if the receptacle used to power the microwave was usable. Finding that there was a "potential[ly] serious" issue with the panel, Pengitore testified that he later met with Ardis, allegedly accompanied by Bazela, to express his concerns about the electrical system.1 Pengitore stated that he was never paid for this work at the mother's house and that he did not use any personal time, sick time, or time due.

The Air Conditioner Installations

The next two charged acts both involved the installation of wall-mounted air conditioning units at Ardis's girlfriend's house in Totowa on two separate occasions in 2009. Mamary estimated that each of these acts happened in that calendar year but he could not specify the particular dates.

The two trips to the Totowa residence were described in substantially similar terms. For both visits, Mamary testified that he was accompanied by Bazela to Ardis's girlfriend's house after starting work at 7:00 a.m. As was the case with the microwave installation, Mamary testified that he had no contact with Ardis before or after the work was performed, and that he was directed in his tasks by Bazela. Mamary recalled that they drove to Ardis's girlfriend's house in a PVSC truck, that the drive took approximately forty minutes from Newark one-way, and that they arrived, fully uniformed, about mid-morning.

According to Mamary, in neither instance did he punch out before leaving the PVSC facility. Mamary further stated that he was not offered any additional pay, and that he did not take any vacation, personal, or time due for the period while working at Ardis's girlfriend's house.

Unlike the first trip, however, it was discovered during the second trip to the Totowa house that the air conditioning unit that had been purchased was too small for the opening in the wall. After Bazela made a phone call, Mamary and Bazela drove to a P.C. Richard & Son ("P.C. Richard") appliance store located on Route 46 in Totowa. Mamary testified that they met Ardis in the store's parking lot. All three men then went into P.C. Richard and exchanged the air conditioning unit. Upon making the exchange, Bazela and Mamary returned to Ardis's girlfriend's house without Ardis and "let [them]selves in." In total, Mamary estimated that the time devoted to the work in this second visit to the girlfriend's house, excluding travel time, was approximately two hours.

The Sheetrock Removal

The final incidents charged by the State involved the removal and installation of sheetrock at Ardis's mother's attached one-car garage. This project allegedly was carried out on different occasions over the course of two weeks. The project involved John Edler, another PVSC carpenter who worked in the maintenance department. Although Edler could not specify the particular dates, he testified that the two incidents of sheetrock removal occurred on weekdays sometime in 2008. Edler testified that he never spoke with Ardis directly about this work.

As Edler described it, in the first instance, he and Mamary drove to Ardis's mother's house in a PVSC truck. They ripped down some sheetrock in the garage, placed the sheetrock at the curb in front of the house, and then returned to the PVSC. Edler estimated that this entire job, including travel, was completed in one-and-a-half hours. Edler testified that he and Mamary did not punch out before leaving the PVSC, and that he took his normally scheduled lunch that day. Edler stated that he did not receive any pay for this additional work, and acknowledged that he did not use personal time, sick time, or time due.

On the second sheetrock trip, Edler was accompanied by Bazela, rather than Mamary. The men installed a small piece of sheetrock. The men drove to Ardis's mother's house in Edler's personal vehicle, apparently because other PVSC vehicles were being repaired. Again, Edler testified that he used no personal time, sick time, or time due, and that he did not receive any additional pay for this work he performed at Ardis's mother's house. After this second installation, Bazela allegedly stated to Edler, in an offhand fashion, that "what happens in Vegas stays in Vegas," and that Edler should "advertise nothing" about the sheetrock project.

The Indictment and Ardis's Pre-Trial Severance Motions

Following an investigation by the State Attorney General, a State grand jury charged both Ardis and Bazela with the following offenses: second-degree official misconduct, N.J.S.A. 2C:30-2 (Count Two); second-degree pattern of official misconduct, N.J.S.A. 2C:30-7(a) (Count Three); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3 (Count Four); and second-degree conspiracy to commit those charged acts, N.J.S.A. 2C:5-2 (Count One).

In April 2012, Ardis filed a motion — notably not joined by Bazela — to dismiss the indictment or, in the alternative, to grant a severance of the charges against him from those against Bazela. Those motions were denied in an order and letter opinion issued by the vicinage's Assignment Judge dated August 23, 2012. In denying Ardis's severance motion, the Assignment Judge reasoned:

Ardis renewed his severance application before trial in October 2013. Again, Bazela did not join in that motion. The Assignment Judge denied that second motion in an oral opinion on January 13, 2014. The judge incorporated by reference his prior decision, noting that no new persuasive arguments for severance had been presented.

The joint trial was conducted before a jury over twenty intermittent days between January and March 2014. Prior to trial, the Criminal Part judge who presided over the case made various rulings which we will discuss in more detail, infra, concerning limitations on certain proofs that could be presented. Among other things, those rulings dealt with the fact that Bazela had been charged with another PVSC employee, Kevin Keogh, in a separate indictment, essentially alleging that the two of them had engaged in the same kinds of improper personal services charged in the Ardis/Bazela indictments.2

Bazela's Attorney's Opening Statement and The Court's Denial of Ardis's Resulting Motion for a Mistrial

Bazela's counsel was the last attorney to give an opening statement. During the course of his opening, Bazela's counsel made a series of highly-charged assertions conveying to the jurors certain factual information that apparently had been supplied to him by his client. These fact-laden assertions by Bazela's counsel sparked a mistrial motion by Ardis, which the judge denied. Despite that denial, the statements eventually provided a critical basis for the trial judge's post-trial decision to grant Ardis a new trial.

Ardis's counsel had expressed concern to the court before counsel's openings about any references being made to Bazela's out-of-court statements, given that Bazela would have the constitutional prerogative to decline to testify in his own defense. Those fears became a reality when Bazela's attorney repeatedly told the jury in his opening about alleged facts inculpatory to Ardis, which the State apparently was not expected to establish and which only would emerge if Bazela took the stand. The gist of those factual claims was that Ardis had met with Bazela in Ardis's office and expressly directed Bazela that the odd jobs had to be completed by PVSC workers on company time.

Specifically, Bazela's counsel in his opening told the jurors, among other things, the following:

As it turned out, Bazela did not testify at trial. As the State acknowledges, no evidence was presented during the trial about this alleged meeting between Bazela and Ardis or of Ardis's alleged statements. The only meeting between Ardis and Bazela that was supported by any testimony was their meeting at P.C. Richard when the air conditioning unit was swapped.

Ardis moved for a mistrial immediately after Bazela's counsel's opening concluded. The motion was denied. The trial judge determined, at least at that time, that a curative instruction to the jurors would be a sufficient remedy for any undue prejudice. Indeed, directly before and after the counsel's opening statements, the trial judge gave the jurors the customary instruction that "opening statements [are] not evidence[, but rather that] [t]he evidence will come from the witnesses who will testify and from whatever documents or tangible items that are received into evidence." The judge also told the jurors to disregard Bazela's counsel's remark that a portion of his adversary's opening was "bull."

A mistrial having been denied, the case proceeded to the proofs. The State's theme essentially was that Ardis and Bazela had conspired to have PVSC workers misuse public resources by performing repairs and personal projects during work hours at the residences of Ardis's mother and his girlfriend. Bazela's defense theme was that he was only following the direction of Ardis as his superior, and that he was not responsible for any misuse of the PVSC employees' time. Ardis, meanwhile, attempted to portray Bazela as a rogue employee who had tried to ingratiate himself with his superiors by having personal tasks performed for them on company time.

The witnesses called by defendants included several other PVSC employees, who likewise recalled going to Ardis's mother's house to perform certain odd jobs, but who each asserted that they used up some form of personal time for the work. Ardis also called several character witnesses. Neither Ardis nor Bazela testified.

The Verdict and Defendants' Motions For a New Trial

After a day of deliberations, the jury convicted both Ardis and Bazela of all counts of the indictment, with certain modifications: third-degree official misconduct, N.J.S.A. 2C:30-2 (Count Two)3; third-degree pattern of official misconduct, N.J.S.A. 2C:30-7(a) (Count Three); fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3 (Count Four); and conspiracy to commit the above-named acts, N.J.S.A. 2C:5-2 (Count One).

Following the verdict, Ardis filed a motion for a judgment of acquittal or, in the alternative, a new trial. Bazela likewise filed his own motion for a new trial.

After hearing oral argument on the post-trial motions, the trial judge granted both defendants a new trial in a lengthy oral decision issued on August 22, 2014. The judge granted them that relief upon concluding, in retrospect, that Ardis and Bazela should never have been tried together.

Ardis's Motion

In reaching his ultimate conclusion as to Ardis, the judge focused principally on two trial events: (1) Bazela's counsel's highly prejudicial and unsupported factual assertions about Ardis during opening statements; and (2) the limitation of Ardis's ability to introduce certain impeaching evidence, particularly under N.J.R.E. 404(b). Specifically with regard to the second point, the trial court noted Ardis's inability to: (a) cross-examine certain PVSC employees about other acts performed on company time for the benefit of different PVSC higher-ups; (b) introduce evidence of an ethical violation that Bazela had committed in 2008; and (c) introduce an inconsistent statement that Bazela made during an internal investigation at the PVSC in 2000.

The judge was especially troubled by the assertions made by Bazela's attorney during his opening. On reflection, the judge found those prejudicial comments to be "crucial" and "critical." As the judge observed:

The judge also seized upon Bazela's counsel's characterization of Ardis as being too "cheap" to pay for the personal services provided at the homes of his mother and girlfriend:

The judge also made several pointed observations about the perceived powerful impact of Bazela's opening on the jurors:

The judge then addressed the limitations that the court had imposed on Ardis's ability to introduce certain evidence under N.J.R.E. 404(b). In particular, Ardis sought to cross-examine Mamary and Braga about other work they had allegedly performed on company time at the direction of Bazela and Keogh, without Ardis's involvement. Before those witnesses were fully cross-examined, however, the judge denied this request, as he found the prejudice to Bazela simply "outweighed" the probative value of these other acts.

Later, however, in his post-verdict decision, the judge reconsidered the propriety and fairness of the cross-examination restriction, now having the full context of the overall evidence presented at trial:

The judge further determined that this prejudice flowing from the court-imposed limitation on cross-examination by Ardis's counsel was further compounded by two additional evidentiary exclusions, namely, the exclusion of Bazela's ethical violation from 20084 and also the exclusion of an inconsistent statement Bazela allegedly made in 2000 during an internal investigation at the PVSC.

With regard to Bazela's 2008 ethical violation, the judge noted that the incident "doesn't just provide corroboration to Ardis's theory that Bazela was a `rouge employee'; but, could be used to rebut the allegations of a conspiracy . . . why would [Ardis] [snitch] on [his] co-conspirator on one act that he committed; and then, not on the others?"

The trial judge concluded, "looking back on the trial, as a whole, it is my opinion that [these errors] . . . ultimately resulted in a trial that contained a series of misconceptions, mistruths . . . and a lack [sic] of unproven facts."

Bazela's Motion

After granting Ardis's new trial motion for these reasons, the trial judge addressed Bazela's own motion for such relief. The judge found that he may have "painted" Bazela "into a corner" by indicating mid-trial that the court might allow the introduction of certain N.J.R.E. 404(b) evidence if Bazela decided to testify. The judge therefore granted Bazela's motion for a new trial as well.

In his new-trial analysis as to each defendant, the judge did not directly address the rationale of the Assignment Judge's earlier rulings denying severance. The judge noted only that it "became clearer to [him], as the trial went on, that the severance [motion] should have been granted."

The State then filed the current interlocutory appeal, which we granted leave to consider. In the meantime, the court's new trial orders have been stayed by agreement.

II.

We adhere to well-settled legal standards and principles of appellate review in considering the new trial orders that were entered here as to each defendant. Rule 3:20-1 permits the trial court to grant a new trial in a criminal case if "it clearly and convincingly appears that there was a manifest denial of justice under the law." On appeal, this court essentially applies the same "manifest injustice" standard. See R. 2:10-1.

As the Rule prescribes, "[t]he trial court's ruling on such a [new trial] motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." Ibid. An appellate court "must make its own determination as to whether there was a miscarriage of justice, deferring to the trial judge only with respect to those intangible aspects of the case not transmitted by the written record — described by the [Supreme] Court as witness credibility and demeanor and the `feel of the case.'" Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:10-1 (2015) (emphasis added).

The circumstances that prompted the trial court here to grant new trials to both defendants — particularly as to Ardis — largely stem from the fact that the defendants were tried together and not severed, as Ardis had twice requested in pretrial motions. As a general matter, Rule 3:7-7 provides that "[t]wo or more defendants may be charged in the same indictment or accusation if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses."

Our case law concerning severance generally recognizes that a "joint trial is preferable because it fosters the goal of judicial economy and prevents inconsistent verdicts." State v. Weaver, 219 N.J. 131, 157 (2014) (citing State v. Brown, 118 N.J. 595, 605 (1990) ("Brown I")). If, however, "it appears that a defendant . . . is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief." R. 3:15-2(b).

The required showing of prejudice to a defendant resulting from a joint trial in order to show his entitlement to severance has been described as "rigorous." See State v. Brown, 170 N.J. 138, 160 (2001) ("Brown II"). This rigorous showing is required because "[t]he danger by association that inheres in all joint trials is not in itself sufficient to justify a severance, provided that by proper instructions to the jury, the separate status of co-defendants can be preserved." Brown I, supra, 118 N.J. at 605 (citing State v. Freeman, 64 N.J. 66, 68 (1973)). In other words, a defendant seeking severance must show some "central or core antagonism" between the positions of the co-defendants. Ibid.

This concept of central or core antagonism is sometimes referred to as the "mutual exclusivity of defenses." See id. at 606. "When . . . the jury can reasonably accept the core of the defense offered by either defendant only if it rejects the core of the defense offered by his co-defendant, the defenses are sufficiently antagonistic to mandate separate trials." Ibid. (alteration in original) (citations and internal quotations omitted). Conversely, "[i]f the jury can return a verdict against one or both defendants by believing neither, or believing portions of both, or, indeed, believing both completely, the defenses are not mutually exclusive." Ibid.

"Defenses that do not demand that the jury choose one or the other in order to return a verdict, though clearly in conflict and antagonistic, are not mutually exclusive." Ibid.; see, e.g., State v. Weaver, 219 N.J. 131, 157 (2014) (reversing a defendant's conviction at a murder trial in which he was jointly tried with a co-defendant, where each defendant had argued that the other defendant was the shooter of the victim, because the defenses were "antagonistic at their core").

Another basis for severance is presented when a defendant would be unfairly prejudiced at a joint trial by restrictions on the admissibility of exculpatory evidence — such as proof of a co-defendant's prior bad acts under N.J.R.E. 404(b) — that would not exist if the defendants were tried separately. The test for assessing such prejudice is "whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges." State v. Sterling, 215 N.J. 65, 73 (2013) (alteration in original) (quoting State v. Chenique-Puey, 145 N.J. 334, 341 (1996)). The requirements of admissibility under N.J.R.E. 404(b) must be met to support such an argument. The evidence of other crimes or bad acts excluded at the joint trial must be "relevant to prove a fact genuinely in dispute and the evidence is necessary as proof of the disputed issue." State v. Darby, 174 N.J. 509, 518 (2002) (internal quotation marks omitted).

As the Supreme Court recently explained in Weaver, when a person who is charged with a criminal offense seeks to use proof of another actor's prior bad acts defensively, the more stringent test of Rule 404(b) admissibility for prosecutors set forth in State v. Cofield, 127 N.J. 328, 338 (1992), does not govern the analysis. Weaver, supra, 219 N.J. at 150. That important difference stems from the principle that "an accused is entitled to advance in his defense any evidence which may rationally tend to refute his guilt or buttress his innocence of the charge made." Ibid. (quoting State v. Garfole, 76 N.J. 445, 453 (1978)).

Under what the Court has described as a "more relaxed standard" for so-called "reverse 404(b)" evidence offered by a defendant, "a trial court must still determine that the probative value of the evidence is not substantially outweighed by any of the [N.J.R.E.] 403 factors" for exclusion. Id. at 150-51. Those factors under Rule 403 include undue prejudice, confusion of issues, misleading the jury, undue delay, waste of time or needless presentation of cumulative evidence. Id. at 151 (citing State v. Cook, 179 N.J. 533, 567 (2004)); see also N.J.R.E. 403.

Additional fair-trial problems can arise when a co-defendant's hearsay statements inculpating a defendant are presented to a criminal jury and the defendant is precluded from cross-examining the co-defendant about those statements or precluded from presenting other evidence that could impeach them. As the Court noted in Weaver, "[t]he Confrontation Clause generally forbids admitting testimony of a witness who directly or indirectly provides information derived from a non-testifying witness that incriminates a defendant at trial." Weaver, supra, 219 N.J. at 151; see also State v. Branch, 182 N.J. 338, 350 (2005).

This principle came into play in Weaver, where the trial court erroneously and prejudicially admitted a hearsay statement from Weaver's non-testifying co-defendant, Bryant, that he received the murder weapon from Weaver immediately following the shooting. Id. at 162. In addition, the Court found Weaver had been further prejudiced unfairly by the trial court's exclusion of evidence that he wished to present showing that Bryant had used the same weapon in another shooting five months later. Ibid. The Court concluded that the combined impact of these errors warranted a new trial for Weaver, because their cumulative force was not "harmless beyond a reasonable doubt[.]" Id. at 162.

We now apply these various principles to the new trial orders, respectively, granted first as to Ardis, and second as to Bazela.

A.

The two key considerations that cumulatively led the trial judge here to grant Ardis a new trial were: (1) the prejudicial impact of the opening statement of Bazela's counsel detailing facts inculpating Ardis that were never subsequently proven with evidence at trial, and (2) the evidentiary restrictions the court placed on Ardis in attempting to shift blame to Bazela.

We first address Bazela's counsel's opening, which we have already quoted from at some length. As we noted, the opening repeatedly told the jury that, according to Bazela, Ardis met with him before the odd jobs were performed off-site and expressly instructed Bazela that they were to be completed by PVSC workers on company time. As the State concedes, no evidence of such a meeting or such a conversation was ever presented at trial.

We agree with the trial judge that the substance of these factual assertions was highly prejudicial to Ardis. Moreover, Ardis did not have the ability, because of Bazela's invocation of his constitutional right against self-incrimination, to subpoena Bazela or cross-examine him to demonstrate that these assertions were untrue. As Ardis argued in his unsuccessful mistrial motions and again in his post-trial motion, Bazela's counsel was essentially "spoon-feeding" the jury with damaging hearsay derived from a non-testifying co-defendant who could not be cross-examined.

The State correctly points out that this offending information was not presented to the jury in the form of testimony or exhibits, but instead solely in the form of an opening statement by Bazela's lawyer. However, we do not find that distinction to be dispositive under the circumstances presented here.

It is well established that such conduct by counsel conveying facts outside of the trial proofs is generally prohibited. State v. Walden, 370 N.J.Super. 549, 556 (App. Div.) (citing Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L. Ed. 2d 476 (1968)), certif. denied, 182 N.J. 148 (2004); State v. Gentry, 439 N.J.Super. 57 (App. Div. 2015).5 However, the criminal cases where relief has been afforded for this reason ordinarily involve comments made in an opening or closing statement by a prosecutor, rather than by a counsel for a co-defendant.

In instances where, as here, the objectionable material results from a co-defendant's misconduct, courts have required the defendant seeking severance or mistrial to "`demonstrate the existence of some special prejudice' that the court could not remedy through other means." United States v. DeCologero, 530 F.3d 36, 54 (1st Cir.) (quoting United States v. Pierro, 32 F.3d 611, 616 (1st Cir. 1994), cert. denied, 513 U.S. 1119, 115 S.Ct. 919, 130 L. Ed. 2d 799 (1995)), cert. denied, 555 U.S. 1005, 129 S.Ct. 513, 172 L. Ed. 2d 376 (2008). Otherwise, "co-defendants could provoke mistrials at will." Ibid.; see also United States v. Delpit, 94 F.3d 1134, 1143-44 (8th Cir. 1996); United States v. Bamberger, 456 F.2d 1119, 1128 (3d Cir. 1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3067, 37 L. Ed. 2d 1040 (1973). The trial judge essentially found such "special prejudice" existed here, even though he did not use that particular term from the case law.

The State contends that the trial judge overstated the level of prejudice to Ardis from Bazela's attorney's improvident opening, because the jury was provided with the standard jury instruction that the remarks of counsel are not themselves evidence and should not be treated as such. See Model Jury Charge (Criminal), "Instructing After Jury is Sworn" (2011). To be sure, that standard charge was provided here as part of the general instructions. The judge also provided a separate, albeit somewhat vague, curative charge, which he issued to the jury after denying Ardis's mistrial motion, reminding the jurors that opening statements of counsel are not evidence but not specifying which portion of the opening to which he was referring.

At that point in the trial, however, it was not entirely certain that Bazela would exercise his constitutional privilege and choose not to testify. It was not until after the trial was completed that the judge realized, on reflection, that Bazela's counsel's "riveting" disclosures to the jury in his opening were so prejudicial and that the instructions provided to undo the harm were inadequate.

We honor the oft-stated proposition that "[o]ne of the foundations of our jury system is that the jury is presumed to follow the trial court's instructions." State v. Burns, 192 N.J. 312, 335 (2007) (citing State v. Nelson, 155 N.J. 487, 526 (1998), cert. denied, 525 U.S. 1114, 119 S.Ct. 890, 142 L. Ed. 2d 788 (1999)). However, that proposition is not immutable. At times, momentous events may occur while a trial is underway that are so highly prejudicial that no jury instruction can ameliorate the harm. See, e.g., State v. Manning, 82 N.J. 417, 421-22 (1980) (finding that the prejudice of testimony regarding other crimes was "devastating" and constituted reversible error despite prompt and emphatic limiting instructions from the trial court); State v. Laboy, 270 N.J.Super. 296, 307 (App. Div. 1994) (noting that the presumption that juries follow the instructions of the court is not an "absolute certitude" and stating that limiting instructions would not have been sufficient to address the prejudice of a non-testifying co-defendant's inculpatory statements introduced at trial even had such instructions been given).

As reflected in his lengthy post-trial oral opinion and pointed observations, the trial judge in this case concluded that Bazela's counsel's opening, when considered in the context of the overall trial and other errors, was so unfairly prejudicial to Ardis as to require a new trial, despite the curative instructions that had been given. In essence, the judge found that this case presented the rare circumstance where no instruction to the jury could alleviate the prejudice to Ardis, and that to allow the verdict to stand against Ardis would be a miscarriage of justice. The proverbial bell, as it were, could not be "unrung."

We decline to disturb this assessment of undue prejudice to Ardis by the trial judge. The judge's analysis was informed not only by what appears in the cold trial transcripts, but also by his first-hand observations of counsel's "voice and inflections and intonations" in conveying these unsupported factual assertions to the jury. Noting the "venom" in Bazela's counsel's voice in his opening, the judge perceived that counsel's "riveting" remarks, which he remarked would have been proper in a separate trial, were "incredibly inflammatory" for Ardis when uttered in this joint trial. The judge repeatedly found that the alleged facts described by Bazela's counsel concerning his client's supposed meeting with and instructions from Ardis were both "critical" and "crucial."

The trial judge also had reasonable grounds to conclude that this prejudice to Ardis was compounded by the restrictions the court imposed on Ardis's ability to elicit proof that could have undermined both Bazela's theory that Ardis had engineered the off-site odd jobs and the State's theory that both Ardis and Bazela were equally culpable for those services being performed on company time. Although we do not agree with all of the instances of improper restriction cited by the judge and by Ardis, we agree upon one key restriction we deem to be an additional valid reason for sustaining the court's grant of a new trial to him.

As we have noted, three separate evidentiary restrictions were identified by the trial court in this regard: (1) Ardis's inability to cross-examine Mamary and Braga about services performed by PVSC workers on "company time" for other supervisors, allegedly at Bazela's direction; (2) his inability to introduce proof of an ethical violation that Bazela was found to have committed in 2008; and (3) an inconsistent statement Bazela allegedly made during an internal investigation at the PVSC in 2000.

The first restriction stemmed from an evidential ruling that the trial court made before trial (apparently during jury selection)6 directing that evidence of the incidents involving Bazela and Keogh, which were charged in a separate indictment, would not be admitted into evidence. The judge later clarified that the proof might be admissible if Bazela testified in his own defense. Bazela chose not to testify in his own defense. As he recalled during his post-trial oral opinion, the judge had imposed this restriction because allowing such proof to be presented "would have been incredibly prejudicial to Bazela."

In compliance with this directive, the prosecutor steered clear of the Keogh subject in questioning the State's witnesses on direct examination. Ardis's counsel wanted to cross-examine the witnesses on this subject, but was not permitted to do so. In fact, Ardis was not even allowed to ask Mamary or Braga on cross-examination about their own acts performed for other supervisors at Bazela's direction.

After the verdicts were returned, the judge recognized, on reflection, that this restriction was particularly harmful to Ardis, because it could have "significantly impact[ed] a jury's decision as to the reliability and accuracy of [their] testimony." He reasoned that if this restriction had not been imposed upon Ardis's ability to freely cross-examine the State's witnesses on this subject, then the undue prejudice created by Bazela's counsel's opening might have been ameliorated.

We are mindful that, as a general proposition, comments made by counsel during opening statements do not "open the door" to rebuttal evidence. State v. Cordero, 438 N.J.Super. 472, 486 (App. Div. 2014) ("[A]n assertion in an opening statement does not suffice to `open the door' to 404(b) rebuttal evidence.") (quoting State v. Anastasia, 356 N.J.Super. 534, 543 (App. Div. 2003)), certif. denied, 221 N.J. 287 (2015). Even so, for the reasons well articulated at length by the trial judge in his oral opinion, this is an exceptional situation in which the jury was provided with a highly-charged factual account delivered by counsel for a co-defendant inculpating Ardis at the very beginning of trial that was never proven by any evidence.

Moreover, even if counsel's improper opening did not "open the door" to such proof from a co-defendant, Ardis was nonetheless constrained from undercutting the testimony that the State had elicited on direct examination. That is particularly so, given that the dates and circumstances in which the odd jobs were performed in this case might have been confused with the private work allegedly performed on company time by Mamary and Braga within the same time span of nearly three years. Although Ardis's counsel did attempt to cross-examine Mamary and Braga at length about other facets of their testimony, the trial judge had reason to perceive that Ardis's cross-examination could have been more effective had the topical restrictions not been imposed.

The State contends that Ardis voluntarily acquiesced to these restrictions, pointing out that he stated on the record at least twice during the trial that he would not delve into these subject matters unless Bazela testified, and that he wanted only the right to subpoena the State's witness later if Bazela took the stand. That acquiescence, however, occurred after the judge already had ruled at the beginning of the case that the details of the Keogh matter were to be avoided, a ruling that the judge expressly reaffirmed before Ardis's counsel completed his cross-examination of Mamary and Braga. The judge clarified that such matters could only be explored if Bazela later took the stand.

Fairly considered from this chronological perspective, we do not find that Ardis waived his right to cross-examine the State's witnesses on a subject that the court had already ruled to be off limits. Nor is this an instance of "invited error" by defense counsel. Compare State v. Jenkins, 178 N.J. 347, 358-60 (2004) (finding that the invited error doctrine did not apply because the court arrived at its decision "independently of any invitation or encouragement by defendant"), with State v. A.R., 213 N.J. 542, 561-62 (2013) (finding, by contrast, defense counsel engaged in "invited error" because counsel failed to object to playing a prejudicial videotape as a clear strategy choice, despite the court's invitation to do so).

A criminal defendant's constitutional rights include "a meaningful opportunity to present a complete defense." State v. Garron, 177 N.J. 147, 168 (2003) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L. Ed. 2d 636, 645 (1986)), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 151 L. Ed. 2d 1204 (2004). "Among the primary interests protected by the right of confrontation are the opportunity for defendants to face their accusers and to cross-examine the state's witnesses." State v. Budis, 125 N.J. 519, 530-31 (1991). This includes "protect[ion] against improper restrictions on questions defense counsel may ask during cross-examination." Id. at 531 (citing Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct. 989, 999, 94 L. Ed. 2d 40, 54 (1987)).

"[F]or the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility. . . ." N.J.R.E. 607. "In short, N.J.R.E. 607 permits the introduction of extrinsic evidence affecting a witness' credibility regardless of whether that evidence is relevant to any other issue in the case." State v. Parker, 216 N.J. 408, 418 (2014).

To be sure, the right of confrontation "is not absolute," Budis, 125 N.J. at 531, and "`may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process,' such as established rules of evidence and procedure designed to ensure the fairness and reliability of criminal trials," Garron, supra, 177 N.J. at 169. "[T]rial courts `retain wide latitude . . . to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.'" Budis, supra, 125 N.J. at 532 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986)).

In the present case, the trial court itself conscientiously recognized, in hindsight, that it had misapplied its authority in curtailing Ardis's rights of confrontation and his impeachment of several of the State's key witnesses. The court's assessment in this regard has adequate support in the record and in the applicable law.

We part company, however, with the trial judge's discrete analysis with respect to Bazela's 2008 ethical violation and Bazela's alleged prior inconsistent statement during a PVSC internal investigation in 2000. Although the ethical violation might have been useful to impeach Bazela's credibility if he had taken the witness stand, see N.J.R.E. 607, Bazela did not do so. We also are unpersuaded that the ethical violation was so probative that it would be an abuse of discretion for it to be excluded under N.J.R.E. 403 and N.J.R.E. 404(b). State v. Nantambu, 221 N.J. 390, 402 (2015); State v. Gillispie, 208 N.J. 59, 84 (2011).

The probative value of the prior inconsistent statement made in 2000, reflected in a memorandum that was written about fourteen years before the time of this 2014 trial, is even more attenuated. Moreover, Ardis did not proffer evidence of Bazela's 2000 memorandum until after oral argument on the post-trial motions and did not mention it in his post-trial motion papers.

Considering the circumstances in their totality, we are unpersuaded by the State's arguments that the trial court's grant of a new trial to Ardis must be set aside. Although we do not question the wisdom of the Assignment Judge's original denial of severance before trial, based upon the then-anticipated circumstances, the particular way this trial unfolded as to Ardis justified a later reassessment of that decision. Nor do we discount the strength of the State's proofs or minimize the wrongful nature of a violation of the public trust. But the mandate for a fair trial must be paramount before Ardis's conviction can be sustained.

In sum, the State has not demonstrated that the trial court's grant of a new trial to Ardis "clearly appears [to be] a miscarriage of justice under the law." R. 2:10-1. The trial court's order as to Ardis is consequently affirmed.7

B.

We turn to Bazela. Preliminarily, we note that the court's oral opinion as to Bazela was far less extensive than its stated rationale for granting a new trial to Ardis. In essence, the trial judge ruled that Bazela had been deprived of a fair trial because the court indicated during the trial that it might permit the State to introduce certain Rule 404(b) proofs of prior bad acts against Bazela, specifically the facts relating to the Keogh indictment, if Bazela elected to testify.

This issue became prominent during Ardis's counsel's cross-examination of Braga, at which time Bazela objected to the Keogh matter being explored. At that point, the judge explicitly advised counsel that the Keogh matter could be delved into if Bazela took the stand. Bazela's counsel objected, arguing that this proviso contradicted the court's earlier ruling during jury selection, leading counsel to believe that information regarding the Keogh indictment could not be revealed at any time. In his post-trial analysis, the judge agreed that this sequence of rulings unduly prejudiced Bazela, and that he too is entitled to a new trial.

We are not so persuaded. For one thing, as we have noted, Bazela never moved for severance at any time before or during the trial. Unlike Ardis, Bazela apparently was willing to participate in a joint trial, perhaps for strategic reasons in the hope that the jury might perceive his PVSC superior Ardis as being the only (or the more) culpable defendant.

Furthermore, the trial judge did not procedurally err in withholding a definitive or unqualified ruling about the Rule 404(b) evidence concerning the Keogh incident until the trial had progressed further. There is no absolute requirement that a Rule 404(b) ruling must be issued in limine and rigidly maintained through the entire trial, no matter how the case unfolds.

To the contrary, in Cordero, supra, 438 N.J. Super. at 484, we recently upheld a trial judge's decision to postpone a definitive ruling on the admissibility of a defendant's prior bad acts (there shoplifting) under Rule 404(b) until the time that the defendant took the stand. The judge in Cordero did express a tentative view regarding the proofs' admissibility, based on the limited information that was available at that time. Id. at 487-88. We approved of the judge's wait-and-see approach in Cordero because it was "virtually impossible" to know in advance what the defendant might say once subjected to cross-examination. Id. at 487. Similarly here, the timing of the court's announcement in the midst of trial that it would allow proof of Bazela's prior bad acts if he took the stand after the State rested was not error, let alone the sort of severely prejudicial error creating manifest injustice.

The trial judge mused in his post-trial ruling that he may have "painted [Bazela] into a corner" by indicating that the prior bad acts were potentially admissible if Bazela testified. We discern no manifest injustice, however, in the sequence of events.

Bazela further complains that the trial judge did not conduct a full-blown Rule 404(b) analysis at a Rule 104 hearing and provide a specific analysis of the various Cofield factors before advising that Bazela would risk admission of the Rule 404(b) proofs if he took the stand. Although we agree that no such hearing or analysis was explicitly provided here by the judge and would have been preferable, there is no indication that Bazela requested a hearing when the judge ruled on the issue. Nor did the need arise for the judge to comment further on the issue because Bazela never testified.

It is pure conjecture to assume that Bazela would have testified, and would have done so credibly, if the court had not ruled as it did. Furthermore, Bazela did not seek clarification or reconsideration of the court's evidentiary ruling. And, unlike Ardis, he never moved for a mistrial.

Moreover, had Bazela taken the stand, the State would have had substantial arguments under N.J.R.E. 404(b) and N.J.R.E. 607 to support a ruling that Bazela's prior bad acts, such as his alleged conduct in the Keogh matter, were admissible to impeach him and thereby undercut his testimony if he suggested on the witness stand that he acted at all times under the direction and at the insistence of Ardis. Likewise, even if, as Bazela belatedly asserted after the jury's verdict, the charges against him should have been severed, the State would have had substantial arguments under Rule 404(b) to admit prior bad acts of Bazela as part of its case-in-chief.

We need not resolve here hypothetically whether such arguments for admissibility under Rule 404(b) would or should have been successful. Our point instead is that, unlike the highly prejudicial circumstances we have already discussed concerning Ardis, the way this trial unfolded and the court's evidentiary rulings did not comparably result in a miscarriage of justice for Bazela. Even if any error concerning the handling of the Rule 404(b) issues occurred, we concur with the State that the remedy of granting a new trial for Bazela was simply too drastic a judicial response.

The high bar under governing law for granting a new trial as to Bazela was not clearly surmounted here. The trial court, despite its stated misgivings, objectively lacked sufficient justification to grant Bazela a second trial. Hence, the order affording Bazela that remedy is reversed.

III.

For the reasons we have stated, we therefore affirm the trial court's grant of a new trial to Ardis but reverse its grant of a new trial to Bazela. The Ardis matter is remanded to the trial court for that purpose. Sentencing shall proceed in the Bazela matter in the trial court after the appropriate pre-sentencing investigation is completed. We do not retain jurisdiction.