NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4546-12T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEEVIN DAVID, a/k/a KEEVIN
EDWARD DAVID, KEVIN DAVID,
DAVID KEEVIN,
Defendant-Appellant.
_______________________________
Telephonically argued January 11, 2017 –
Decided August 22, 2017
Before Judges Nugent and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 11-
12-2138.
Kelly Anderson Smith argued the cause for
appellant.
Lucille M. Rosano, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Carolyn A. Murray,
Acting Essex County Prosecutor, attorney;
Andrew R. Burroughs, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Keevin David appeals from a judgment of conviction
for murder and two weapons offenses. He argues:
POINT I
THE JURY CHARGE REGARDING ACCOMPLICE LIABILITY
WAS IMPROPER, THUS DENIED DEFENDANT DUE
PROCESS AND A FAIR TRIAL.
A. The Jury Charge Regarding Accomplice
Liability Was Given In Error As Defendant
Was Denied Due Process And A Fair Trial.
B. The Court To Properly Include State's
Material Witness Gregory Lieberman In
Connection To The Inconsistent Statement
Charge.
C. The State Improperly Instructed The Jury
As To The Flight Charge In Connection To
The Defendant.
D. The Prosecutor Intentionally Misstated
Critical Facts To The Jury, Thereby
Prejudicing The Defendant And Causing Him
Irreparable Harm.
POINT II
DEFENDANT WAS IRREPARABLY PREJUDICED AND
DENIED A FAIR TRIAL WHEN HIS MATERIAL WITNESS
WAS PERMITTED TO TESTIFY IN JAIL CLOTHING AND
HANDCUFFS IN FRONT OF THE JURY.
POINT III
PROSECUTOR'S COMMENTS CONSTITUTE MISCONDUCT
AND PREJUDICED THE DEFENDANT.
We agree with defendant's second point, namely, that he was
deprived of a fair trial when a witness crucial to his defense
2 A-4546-12T3
testified in jail garb and handcuffs. For that reason, we reverse
and remand for a new trial.
An Essex County grand jury returned an indictment charging
defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and
(2); second-degree unlawful possession of a weapon, a handgun,
N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4(a). In October 2012, a jury
found defendant guilty on the weapons counts but failed to reach
a verdict on the murder count.
In January 2013, at the conclusion of the retrial on the
murder count, the jury found defendant guilty. The judge sentenced
defendant on the murder count to a fifty-five-year custodial term
subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
The judge sentenced defendant to a concurrent ten-year custodial
term with five years of parole ineligibility on the unlawful
possession of a weapon count and to a concurrent ten-year custodial
term on the possession of a weapon for an unlawful purpose count.
Defendant appealed.
Following defendant's retention of new counsel, defendant
filed a motion to expand the record. According to defendant, key
witnesses testified in jail garb and handcuffs without comment by
the trial court. An appellate panel denied defendant's motion
"without prejudice to renewal after defendant makes and the trial
3 A-4546-12T3
judge decides a motion to settle the record pursuant to R. 2:5-
5." Following two days of hearings in February and March 2015, a
judge — not the trial judge — issued an order and opinion settling
the record. The judge concluded:
1. During Mr. David's first trial held from
September 20, 2012 through October 1, 2012[,]
both witnesses, Azmar Carter and Gregory
Lieberman testified in jail garb and wore
handcuffs.
2. During Mr. David's [s]econd [t]rial held
from January 8, 2013 through January 18,
2013[,] witness Azmar Carter testified in jail
pants and shoes while wearing a civilian shirt
and witness Gregory Lieberman wore a jail
uniform; both Carter and Lieberman wore
handcuffs.
3. The court finds that there is no record
of hearings outside of the presence of the
jury on the issue of witnesses wearing jail
clothing and/or handcuffs during their
testimony.
4. The court finds that during neither trial
was the jury given an instruction on
witnesses' testifying in jail garb or prison
garb.
Following the hearings, the parties filed their appellate
briefs.
The State developed the following proofs at trial. In January
2011, the homicide victim, Tyrell Coleman, lived with his mother,
father, brother, and sister in an apartment located in a four-
story, multi-unit building on the corner of Center and Chapman
4 A-4546-12T3
Streets in Orange. The building's exterior entryway on Center
Street consisted of exterior doors that opened into a vestibule
or lobby. The doors were usually unlocked. On the opposite side
of the lobby was a door that opened into the building's interior.
This door was locked.
The victim was shot to death in the lobby on January 25,
2011, at approximately 11:30 a.m., after he came home from school.
His father, who was home at the time, heard five gunshots. He
looked out the kitchen window and saw three black men scurry away
from his building, across the street, and further down Center
Street. A neighbor knocked on the front door of the victim's
apartment and told the victim's father his son was downstairs
bleeding. His father went to the lobby where he found his son
lying on the floor.
Three or four months later, the victim's father viewed a
video of three men entering a cab near a funeral home "right around
the corner from South Center Street," approximately one block
away, on Henry Street. He knew they were the same men he had seen
scurry away from his building because he recognized the clothing
they wore and the way they looked, but he could not identify them
because he never saw their faces.
A construction worker on a nearby project heard the gunshots
and saw three teenagers run out of the victim’s apartment. One
5 A-4546-12T3
spoke to a taxicab driver parked on the corner of South Center and
Chapman Streets, but they did not enter the cab. After talking
briefly with the cab driver, they continued to run toward Main
Street. The construction worker could not identify the three
teenagers because he did not see their faces.
Crime scene detectives collected six spent shell casings, a
copper jacketed ballistic projectile, and a copper jacketed
fragment and one lead ballistic fragment. The cause of the
victim's death was multiple gunshot wounds: two in the head, two
in the chest.
City of Orange Detective Sergeant Michael Tingolie and Essex
County Prosecutor's Detective Phillip Gregory were assigned by
their respective offices to investigate the homicide. Each went
to the scene on the afternoon of the shooting. After interviewing
law enforcement personnel and others at the scene, Detective
Tingolie canvased the area for surveillance video cameras. He
located one at a funeral home on Henry Street. The surveillance
video showed three males run up to a green taxi cab parked across
the street. The males entered the cab, and moments later the cab
drove off. The detective located the cab driver, who drove with
the detective to the house where the cab driver took the three men
6 A-4546-12T3
on the day of the homicide. The house was the Monroe Street
residence of a young man named Nadine Everet.1
During the first several months following the homicide, there
were two significant developments in the investigation. The first
occurred after police arrested a young man named Gregory Lieberman
for attempting to sell a handgun. Ballistics tests revealed the
handgun was the one used to shoot Tyrell Coleman. The second
occurred when a young man named Charles McBee, incarcerated on an
unrelated offense, gave a video-recorded statement to police about
a statement defendant allegedly made, admitting he shot the victim.
Lieberman testified at defendant's trial.2 According to
Lieberman, police arrested him on February 8, 2011, when he
attempted to sell the gun. He first saw the gun approximately one
and one-half to two weeks earlier, when he drove to a Springfield
apartment complex one morning and picked up defendant, Tayshaun
Martin, and Nadine Everett.3 Although Lieberman was supposed to
drive defendant, Martin, and Everett to Everett's house on Monroe
Street in Orange, while driving on Jackson Street in Orange, the
1
The cab driver testified and confirmed the detective's testimony
but could not identify the perpetrators.
2
Lieberman testified in prison attire and handcuffs.
3
Lieberman knew defendant as "Drama," Martin as "Dice," and
Everett as "Pop."
7 A-4546-12T3
passengers saw two people, one walking behind the other. The
person in the rear was the victim, Tyrell Coleman. Martin, who
was sitting in a rear passenger seat, "pulled out the gun" and
"said 'this dude's slippin,' and he racked a bullet in the chamber
of the gun." The passengers exited the car at the corner of
Jackson and Lincoln streets and told Lieberman to wait, but he did
not want to get involved, so he drove away.4 The passengers walked
toward the two people they had seen walking on Jackson Street.
Approximately a week later, Lieberman purchased the handgun from
Martin, intending to resell it.
McBee testified at trial and recanted his video-recorded
statement. The State presented the statement to the jury.
According to the statement, McBee was incarcerated when his
girlfriend told him during a telephone conversation that the victim
had been killed and defendant had killed him. Another inmate,
Asmar Carter, who knew defendant, telephoned him in McBee's
presence and McBee listened to the conversation. McBee claimed
defendant said he, Everett, and Martin were in a car and saw the
victim walking home from school. When they first saw him, he was
4
The victim's father testified it would take "about five, ten
minutes" to walk from the corner of Jackson and Lincoln to the
apartment.
8 A-4546-12T3
walking past a pharmacy on Central Avenue.5 They got out of the
car, followed him home, and shot him. Defendant said he shot the
victim; he just ran right up and shot him. The offense for which
McBee was incarcerated was eventually dismissed.
Asmar Carter testified for defendant.6 Contrary to McBee's
testimony, Carter, age eighteen, testified a corrections officer
told him about the victim's death; he had defendant's telephone
number memorized, so he did not need to dial it from a piece of
paper; and he never discussed the victim's death with defendant.
Carter denied that McBee ever asked him to telephone defendant and
also denied ever making a telephone call in McBee's presence.
Carter claimed he only used the telephone in an interview when his
social worker, but no one else, was present.
In addition to Carter's testimony, defendant presented the
testimony of the victim's friend, who was with the victim shortly
before the shooting. The friend testified they walked from school,
side-by-side, on Central Avenue, stopped at a store, and then went
5
The victim's father testified the pharmacy was one-half of a
block from his apartment and it would take approximately twenty
seconds to a minute to walk from one to the other.
6
Carter testified in jail pants and shoes but wore a civilian
shirt. He was handcuffed throughout his testimony.
9 A-4546-12T3
separate ways. The victim's friend said they were never together
on Jackson Street.7
On appeal, defendant argues in his second point that he was
unduly prejudiced when Carter testified in jail garb and handcuffs.
We agree.
"The appearance of a defense witness in restraints undermines
the credibility of the testimony that witness offers on the
defendant's behalf." State v. Artwell, 177 N.J. 526, 536 (2003)
(citations omitted). For this reason, and "[b]ecause the
appearance of a defense witness in restraints presents a risk of
undue prejudice to a defendant, the trial court may subject a
witness to physical restraint only when it 'has reason to believe
it is necessary to maintain the security of the courtroom.'" Id.
at 537 (quoting Harrell v. Israel, 672 F.2d 632, 635 (7th Cir.
1982)).
If the trial court has reason to believe restraining a
defendant is necessary to maintain security, then the court "should
'hold a hearing, however informal, and state on the record out of
the jury's presence [its] reasons for shackling the [witness],
whether they are based on evidence from trial, information obtained
7
Defendant also presented the testimony of a detective who
recorded a conversation between Lieberman and Everett about
Lieberman returning the gun.
10 A-4546-12T3
from criminal records, or statements made by law enforcement
officers.'" Ibid. (alterations in original) (quoting State v.
Damon, 286 N.J. Super. 492, 499 (App. Div. 1996)). The trial
"court must 'instruct the jury in the clearest and most emphatic
terms that it give such restraint no consideration whatever in
assessing the proofs and determining guilt.'" Id. at 538 (quoting
State v. Roberts, 86 N.J. Super. 159, 168 (App. Div. 1965)).
Although requiring a witness to testify in restraints may be
necessary to maintain security, "requiring a witness to testify
in prison clothing 'further[s] no vital State interest[,]" id. at
539 (first alteration in original) (quoting State v. Maisonet, 166
N.J. 9, 17 (2001)), but only serves to "prejudice[] a defendant
both in undermining his or her witness's credibility and suggesting
a defendant's guilt by association." Ibid. (citing State v. Yates,
381 A.2d 536, 537 (1977)). For these reasons, "a trial court may
not require a defendant's witness to appear at trial in prison
garb." Ibid. (citations omitted).8
In the case before us, the trial court overlooked all of our
Supreme Court's pronouncements in Artwell. Nothing in the record
8
In State v. Kuchera, 198 N.J. 482, 486 (2009), the Court
exercised its "supervisory powers to require that, as a matter of
course and unless otherwise affirmatively permitted by the trial
court in the exercise of its discretion, witnesses in criminal
cases — both for the prosecution and for the defense — should not
testify in prison garb."
11 A-4546-12T3
suggests that requiring Carter to appear in restraints was
necessary to maintain security. The trial court conducted no
hearing and provided no reasons for having Carter restrained. Nor
did the trial court give the jury any instructions about Carter
appearing in prison garb. Because the situation occurred in both
trials, defendant's convictions must be reversed and the matter
remanded for new trial.
The State points out that defendant did not raise these issues
during either trial, so his argument must be reviewed for plain
error, that is, whether the alleged error was "sufficient to raise
a reasonable doubt as to whether the error led the jury to a result
it otherwise might not have reached." State v. Macon, 57 N.J.
325, 336 (1971); see also R. 2:10-2. The State also speculates
defense counsel could have "effectively waived the matter for
possible strategic reasons." The State's arguments are
unavailing.
The State has cited no case holding that a trial court's
failure to adhere to the Supreme Court's pronouncements in Artwell
is irreversible under a plain error analysis. The State's failure
to cite such a case is understandable given the Supreme Court's
discussion in Artwell, supra, 177 N.J. at 536-37, 539, of the
degree to which a defendant is prejudiced when a defense witness
is restrained and clothed in prison garb. But even if there are
12 A-4546-12T3
situations in which a defense witness testifying in restraints and
prison clothes, and the court failing to conduct a hearing and
instruct the jury, do not constitute plain error, this is not one
of them.
Here, defendant presented Carter's testimony to refute the
statement of a witness who claimed defendant admitted shooting the
victim. The statement of the State's witness was a critical piece
of evidence. Similarly, Carter's testimony was critical to the
defense. We conclude the prejudice occasioned by Carter appearing
in restraints and prison garb was "sufficient to raise a reasonable
doubt as to whether the error led the jury to a result it otherwise
might not have reached." Macon, supra, 57 N.J. at 336. The
State's speculation about defense counsel's possible motive for
not objecting does not dissuade us.
In view of our reversal of defendant's conviction, we need
not address defendant's other arguments. We add only these
comments.
The State's evidence supported both the charge on accomplice
liability and the charge on flight. The jury could have concluded
either that defendant was the shooter, as evidenced by McBee's
statement, or that defendant was an accomplice, as implied in
Lieberman's testimony and evidenced by parts of McBee's statement.
The jury also could have determined from the evidence that
13 A-4546-12T3
defendant was one of the three perpetrators, all of whom scurried
from the crime scene and fled in a taxi. The circumstantial
evidence that the perpetrators fled to avoid arrest was
substantial.
Nevertheless, the prosecutor should make clear before the
retrial begins whether she will request the accomplice liability
and flight charges based on the anticipated testimony of her
witnesses. The trial court will then have ample time not only to
consider defendant's arguments about why the charges should not
be given, but also to evaluate the parties' competing positions
and applicable precedent as the proofs are developed during trial.
We trust that during the third trial the prosecutor will
confine her opening remarks to the evidence she intends to present
during the trial; confine her remarks in summation to the evidence
presented and the reasonable inferences from such evidence; and
refrain from commenting on matters not developed during trial,
such as matters presented before the grand jury but not presented
to the petit jury. This comment should not be construed as
evidencing any opinion on our part about the validity or invalidity
of defendant's argument that the prosecutor engaged in misconduct.
We recognize that prosecutors and defense counsel alike are not
always capable of precisely recalling every statement made by
witnesses during a lengthy trial. As a consequence, an attorney
14 A-4546-12T3
may inadvertently misstate inconsequential evidence during a
summation. Here, however, this case will be tried for a third
time. By the time the attorneys give their closing arguments,
they should have sufficient mastery of the evidence to avoid
inadvertent misstatements.
We have considered the parties' remaining arguments and found
them to be without sufficient merit to warrant further discussion.
R. 2:11-3(e)(2).
Reversed and remanded. We do not retain jurisdiction.
15 A-4546-12T3