                        NOT FOR PUBLICATION WITHOUT THE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-4030-14T4

STATE OF NEW JERSEY,

              Plaintiff-Respondent,

v.

AL-SHAREEF METZ,

          Defendant-Appellant.
_______________________________

              Argued October 24, 2017 – Decided November 16, 2017

              Before Judges Carroll, Leone and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment Nos.
              12-06-1491 and 12-06-1492.

              Kelly Anderson Smith argued the cause for
              appellant.

              Kayla Elizabeth Rowe, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for respondent (Robert D. Laurino,
              Acting Essex County Prosecutor, attorney; Ms.
              Rowe, on the brief).

PER CURIAM

        Tried to a jury, defendant Al-Shareef Metz was convicted of

murder and related weapons offenses in connection with the 2011
shooting death of Tariq Walker.        The only evidence connecting

defendant to the homicide were out-of-court identifications and

statements by two witnesses who told police defendant was the

shooter but recanted at trial.        Defendant was sentenced to an

aggregate sixty-five year prison term with an eighty-five percent

period of parole ineligibility pursuant to the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2.    He challenges his convictions by

raising the following points:

            POINT I

            [] DEFENDANT WAS IRREPARABLY PREJUDICED WHEN
            THE TRIAL COURT ADMITTED HIGHLY SUGGESTIVE
            PHOTO IDENTIFICATION OF THE DEFENDANT BY
            STATE'S   WITNESS,  [T.J.],1  WITHOUT  FIRST
            CONDUCTING A WADE/HENDERSON HEARING.

            POINT II

            THE TRIAL COURT IMPROPERLY ADMITTED THE OUT-
            OF-COURT STATEMENT OF [K.L.].

            POINT III

            THE PROSECUTOR RELIED UPON IMPROPER AND
            PREJUDICIAL REMARKS IN HIS CLOSING STATEMENT
            WHICH INFLAMMED [sic] THE JURY AND DEPRIVED
            [] DEFENDANT [OF] A FAIR AND IMPARTIAL
            EVALUATION OF THE EVIDENCE IN THE CASE.

            POINT IV

            THE TRIAL COURT FAILED TO GIVE A PROPER AND
            COMPLETE JURY INSTRUCTION REGARDING PHOTO
            ARRAY IDENTIFICATION.


1
    We use initials to protect the privacy of the witnesses.

                                  2                            A-4030-14T4
           POINT V

           THE TRIAL COURT FAILED TO PROPERLY RESPOND TO
           THE JURY'S REQUEST FOR A LIST OF EVIDENCE.

           POINT VI

           DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE
           TRIAL COURT FAILED TO MAKE A COMPLETE RECORD
           [OF] CRITICAL READ-BACK TESTIMONY OF A
           MATERIAL WITNESS.

           POINT VII

           [THE] CUMULATIVE   IMPACT   OF   THE   ERRORS
           COMMITTED   THROUGHOUT   THE   TRIAL   DENIED
           DEFENDANT A FAIR AND IMPARTIAL PROCEEDING.

     We have considered these arguments in light of the record and

applicable legal standards.        For the reasons that follow, we

conclude   the   trial   court   erroneously   failed   to   conduct    an

evidentiary hearing on one of the witness identifications; its

read back of witness testimony was incomplete and misleading; and

the prosecutor's summation was improper.       Because the cumulative

impact of these errors was capable of producing an unjust result,

we reverse the convictions and remand for a new trial.

                                   I.

     On March 24, 2014, before starting jury selection, the court

asked whether any motions in limine were pending.             The State

advised it had filed an in limine motion in April 2013, and

represented, "I'm sure Your Honor will recall[] we discussed it

at some length previously."        The State explained its witness,

                                    3                            A-4030-14T4
T.J., had originally selected photograph number two from a photo

array, which was not defendant, and later that evening changed her

mind and selected photo number five, which was defendant.             The

State noted both the first and second identifications were video

recorded, but the first one "was lost, somehow misplaced."            The

State's    motion     was   to   admit   the   second   identification,

notwithstanding the loss or destruction of the recorded first

identification.

      Defense counsel then advised the court, "The only question

is . . . whether or not you have to hear testimony.         Our argument

is that you, obviously, have to take testimony[,] [u]nder Rule

3:11[.]"   When the court pointed out T.J. might be able to clarify

how she recognized defendant, defense counsel noted, "that's why

the question . . . of whether or not she has to be heard or there

has   to   be    a   hearing."     He    suggested   both   out-of-court

identifications should be admitted if the court were to find T.J.

could identify defendant at trial without being tainted by the

photo arrays.        To clarify, defense counsel added, "[I]f she's

testifying that she knows him, then that potentially eliminates

the taint.      But if she's testifying that she doesn't know him,

then it's clear that her identification of him was based on the

taint."    Counsel then requested a hearing to resolve the issue.



                                    4                            A-4030-14T4
     The court inquired whether defense counsel had filed a Wade2

motion.    Counsel responded he did not do so because the State

filed the motion in limine and requested a hearing.        Counsel

further stated that he, the court, and the prosecutor discussed

this at a prior proceeding and determined there was no need to

file the Wade motion.

     The State then produced a transcript of the recording from

T.J.'s second identification, where T.J. selected defendant's

photograph, number five, from the photo array.     After the State

read excerpts from the transcript into the record, it argued T.J.

said number five "of her own volition" and "not at the suggestion

of the detective."   Defense counsel asserted no evidence supported

the State's position that T.J. decided on her own to return to the

police and say "I misidentified," and the detective's leading

questions constituted the only evidence that T.J. was hesitant to

testify because she was afraid of retaliation from people "on the

street."    Defense counsel further noted that not only was the

recording of the first identification lost, but the State produced

no notes or written summaries of what occurred during that first

identification.   Thus, the only record of what transpired was the



2
  United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).


                                 5                          A-4030-14T4
description an investigating officer, Detective Kelly, provided

during his discussion with T.J. on the recording of the second

identification.    The State conceded Kelly was not a disinterested

and detached officer, and he purportedly conducted the second

identification because no such officers were available at the

courthouse around midnight, when the second statement was taken.

       Defense counsel sought to suppress T.J.'s testimony pursuant

to Rule 3:11(d).3    The court labeled that "a strong remedy" and

told defense counsel, "Give me some case law and I will use my

sound discretion."    Defense counsel agreed to do so.   The record

on appeal does not reflect whether the parties submitted briefs,

whether another hearing was held, or whether the court entered any

orders connected with the State's in limine motion or defendant's



3
    Rule 3:11(d) provides:

            If the record that is prepared is lacking in
            important details as to what occurred at the
            out-of-court identification procedure, and if
            it was feasible to obtain and preserve those
            details, the court may, in its sound
            discretion and consistent with appropriate
            case   law,   declare    the   identification
            inadmissible,   redact    portions   of   the
            identification testimony, and/or fashion an
            appropriate jury charge to be used in
            evaluating    the    reliability    of    the
            identification.

Notably, the rule became effective in September 2012, following
the photo identifications in this case.

                                  6                         A-4030-14T4
competing request to suppress T.J.'s identification testimony.

Ultimately,     however,     T.J.    testified    at   trial      regarding    both

identifications.

      T.J. testified that on the evening of June 29, 2011, she was

with the victim, Walker, and another individual, "Wilfee," near

the intersection of Shephard and Huntington Avenues in Newark.                    At

that time, "a Cherokee truck pulled up . . . and someone jumped

out   the    passenger     [side]   and   ran   [Walker]    down    with   like    a

shotgun."      She and Walker ran in different directions, and the

shooter ran after Walker.           T.J. heard "a lot" of shots, following

which she walked over to Walker and observed he had been shot.

      T.J. testified the shooter was wearing a white t-shirt and

jeans.      She stated she got a good look at the shooter that night

and would be able to identify him again, but when asked whether

she saw that person in the courtroom, T.J. testified she did not.

Defendant was present in the courtroom at the time.

      T.J. recounted the circumstances surrounding her prior out-

of-court identifications.            Two days after the murder, she was

driving in Newark when detectives pulled her over.                 The detectives

told her they had video footage of her with Walker when he was

shot,    and   she   had    to   accompany      them   to   the    Essex    County

Prosecutor's Office.



                                          7                                A-4030-14T4
      T.J. was placed in a room with "speakers and cameras," where

she told Kelly and a second detective what she observed on June

29, 2011.      The detectives then left the room, and a female

detective, Detective Oliveria, entered alone and showed T.J. a

photo array.    T.J. selected photograph number two as the shooter

and   communicated   that   to   Oliveria.   T.J.   testified   she   was

confident about her selection.       At 10:18 p.m., Oliveria had T.J.

sign her name on photograph number two.

      T.J. testified, "then all these different guys coming in

saying all this, scaring us."        Referring to the detectives, she

explained:

            I didn't tell him nothing but then I was in
            for hours, I was just ready to get out, I am
            hostage and they was like threatening me,
            telling me about that they could pull up
            records of tickets, you go to jail, basically
            scaring me up.

When she asked to leave, Kelly said, "not now."

      Referring to Kelly, T.J. stated, "He asked me am I sure that

I picked the right photograph.       I said that's what I saw, so--."

Kelly then pointed to photograph number five and asked, "Do you

think this is the person?"

      T.J. testified, "By then I am just like scared, . . . [t]hey

had me in for six to seven hours[,]" and by that point she was

"ready to go."    Kelly instructed her to cross out her signature


                                    8                            A-4030-14T4
on photograph two and put her initials there, and T.J. complied.

At one minute after midnight, T.J. initialed photograph number

five and wrote "the person that shot [Walker], he had a white tee

shirt."   In response to leading questions from the prosecutor,

T.J. stated she chose photograph number five of her own volition.

     On redirect examination by the prosecutor, the following

exchange occurred:

          Q: You have never met with me.

          A: No, just spoke to you on the phone.

          Q: Is that because you didn't want to come
          down here?

          A: Yes.

          Q: You didn't want to testify today?

          A: Yes.

          Q: You didn't want to come meet with me prior
          to the testimony?

          A: Right,   I   didn't   want   to   come    to    this
          building.

          Q: Why?

          A: Because how I was treated in 2011.

          Q: Had you ever indicated that you had fear
          about testifying?

          A: Yeah.

          Q: You had fear     about    going    back    to    the
          neighborhood?


                                   9                                A-4030-14T4
          A: Well, I also go through the neighborhood,
          I got family in Newark so I am always passing
          through the neighborhood.

          Q: Even to this day?

          A: I don't feel like I have to jeopardize,
          can't come to Newark because, you know --

     Immediately after that exchange, T.J.'s testimony concluded

with the following re-cross examination by defense counsel, which

was later omitted from a read back of her testimony to the jury:

          Q: That night, that is the night of July 31st,
          into August 1st, the police put you in fear,
          true?

          A: Yes.

          Q: That night of July 31st to August 1st they
          threatened to lock you up about tickets, true?

          A: Yes.

          Q: Were you afraid?

          A: I think I had two parking tickets that I
          hadn't paid yet by then, I think it was the
          [second detective] saying like he could lock
          me up, scaring me up.

          [(Emphasis added).]

     A second witness called by the State, K.L., testified he was

inside a building near the intersection of Shephard and Huntington

Avenues in Newark on July 29, 2011.   He stated he did not observe

the shooting, did not know the victim personally, and was unable

to identify the shooter in the courtroom.   The State requested a


                                 10                        A-4030-14T4
sidebar, advised the court that K.L. had directly contradicted two

prior sworn statements, and requested a hearing pursuant to State

v. Gross, 121 N.J. 1 (1990).         Defense counsel joined the request,

and the court excused the jury and conducted the hearing.

      At the Gross hearing, K.L. testified he was arrested on August

29,   2011,   on   drug-related     charges.      He    was   then   brought     to

Detective     Philip   Gregory,    who    asked   whether     he   knew   someone

involved in Walker's shooting.             K.L. initially responded he did

not, but ultimately he gave a statement because Gregory said he

would release him, and K.L. felt coerced.               K.L. acknowledged his

statement was recorded, but asserted Gregory told him what to say.

He further testified Gregory showed him a photo array and told him

to select defendant's photo.             Detective Muhammed, who K.L. had

never met before, then came into the room to show him the same

photo array, but he "didn't pick anything."

      K.L. testified that, on a later date, Gregory "called me and

told me I had to come in.         So, I come in.       He bring me in the room

with people like this sitting, I don't know what I was there for."

He added, "I thought it was a court date and . . . [w]hen I got

down there, Detective Gregory was there.            He was just telling me:

'Look, you about to go in there, tell them such-and-such, such.'"

At nineteen years old, K.L. did not realize he was about to testify

at defendant's grand jury hearing.

                                      11                                  A-4030-14T4
       K.L. asserted he did not remember any details about the

shooting, what he told the detectives, or his grand jury testimony.

He explained that, before the grand jury, "I repeated everything

[Gregory] told me to repeat when it happened that day."             He stated

he was drinking when the shooting occurred, "so I really don't

remember half of the stuff that was going on that day."             He added

he had been shot on a previous unrelated occasion before Walker's

death, "so I was on a whole lot of morphine.           I was in the hospital

for like a month-and-a-half, so I really don't remember a whole

lot of stuff."

       Following K.L.'s testimony at the Gross hearing, the State

called Gregory, who gave a different version of events.            According

to Gregory, K.L. indicated he observed "what happened regarding

[the] shooting."     Gregory explained he prepared a photo array and

then   Muhammed,    who    had    no   other   involvement    in   the     case,

administered it to K.L. Gregory did not advise Muhammed which

photo depicted defendant, nor promise to let K.L. go if he gave a

statement.

       After the testimony at the Gross hearing concluded, the judge

reviewed the video of K.L.'s recorded interview.               In a detailed

oral   opinion,    the    judge   concluded    the   State   established      the

reliability of K.L.'s prior statements by a preponderance of the

evidence.    K.L.'s video-recorded statement to Gregory and Muhammed

                                       12                                A-4030-14T4
and an audio recording of his grand jury testimony were admitted

in evidence and played for the jury.

     K.L. then resumed his trial testimony.             He stated he visited

Muhammed Bashir, defendant's trial attorney, at Bashir's office

three or four weeks before trial.        Bashir made an audio recording

of the conversation and gave a copy to the State, although it was

not admitted in evidence.

     When asked his purpose in visiting Bashir, K.L. testified,

"Because I wanted to let him know that this whole thing was a

lie."     The   prosecutor   then   asked:   "Is   it    true   your   primary

motivation for going to see Mr. Bashir is you were afraid your

name would get out on [the] streets as a tattletale or snitch?"

K.L. responded, "Yes," but when asked the clarifying question,

"That's your primary motivation in going to see him?" he responded,

"No."

     The following exchange occurred during the State's redirect

examination of K.L. regarding his audio-recorded conversation with

Bashir:

           Q: You recall "I assume you are here because
           you are afraid of what could happen on the
           streets if your name came out [as] part of
           this particular case"?

           A: No.

           Q: You don't recall that?


                                    13                                 A-4030-14T4
A: No.

     . . . .

Q: Do you remember indicating ["]at the end
of the day, I just don't want to get that name
-- I got a mother, I got a daughter, I -- like
I just got a lot of people. You feel me? I
can't have nobody--it's just a lot of it, just
everything that you could think about from
being a tattletale . . . .      That's my own
words.["] Do you recall giving that?

A: Yeah, I didn't say it like that, how you
just said it.

Q: You got to think about more than one person
right now. Is that correct?

A: Yes.

Q: While you were changing your story, do you
recall – ["]I am changing my story from the
first story, that's because I want to protect
my whole family, to protect everybody.["]

A: No.

     . . . .

Q: You indicated that you had ["]great concern
about becoming a tattletale.["] Describe to
me what that means. What is a tattletale?

A: Tattletale is when you tell on someone.

Q: What are the repercussions you're concerned
about?

A: I am not.

     . . . .

Q: The reason for indicating that was your
primary motivation when asked by — you came

                     14                          A-4030-14T4
            to Mr. Bashir's office concerned about being
            a tattletale.

            A: I wasn't concerned about --

            Q: You weren't concerned about you, you were
            concerned about being a tattletale[?]

            A: No.

            Q: It's not difficult to come in here and
            testify in front of all this open courtroom?

            A: I am telling you the truth.   That's what I
            want, to tell truth.

            Q: You're not concerned about leaving here
            today and going back to the neighborhood?

            A: No.

            Q: [] No?

            A: I am not concerned.

            [(Emphasis added).]

    Early in his summation, the prosecutor used the following

metaphor:

            I want to talk to you about the concept of a
            cocoon. It's not [going to] be a story about
            how somebody goes into the cocoon at one time
            and comes out a butterfly. It's more about
            the idea of being wrapped and feeling safe,
            like when a newborn comes into the world,
            you're taught to swaddle them.    First thing
            they want to have done to them is they want
            that blanket put around them, they want it
            wrapped tight, and they want to feel safe.

            Your . . . out-of-court identifications in
            this case happen in a cocoon. Before that --
            before they're there, they're frightened.

                                  15                         A-4030-14T4
The prosecutor then stated, "[K.L.] told you over and over and

over that he was scared.     And he didn't just say it now, he said

it over and over and over in the past."

     The prosecutor then referenced the portion of K.L.'s cross-

examination relating to K.L.'s meeting with Bashir a few weeks

before trial.    The prosecutor recited Bashir's question asking

K.L. if he met with Bashir because he was "afraid of what could

happen to [him] on the streets if [his] name came out as part of

this particular case."      As the prosecutor was about to recite

K.L.'s answer from the recording, defense counsel objected and the

court conducted a sidebar conference.

     The prosecutor explained he intended to read to the jury from

the transcript made of the recording of that meeting.          The court

responded, "I understand you asked the questions but you can't

read from something that's not in evidence."         (Emphasis added).

The court ultimately overruled the objection, determining the

State was not seeking to introduce K.L.'s answers to Bashir for

the truth of the matter asserted, but rather for the limited

purpose of showing K.L.'s inconsistency.           The court did not,

however,   instruct   the   jury   that   K.L.'s   statement   could    be

considered only for that limited purpose.

     After resuming his summation, and despite the court's ruling,

the prosecutor continued,

                                   16                            A-4030-14T4
          I indicate to you that the inconsistency is
          the truth. His number [one] priority in this
          world at this time was to clear his name and
          to think about his daughter, and all those
          types of things that he indicated to you. He
          doesn't want to be a tattle tail [sic] on the
          street.   He is afraid.   That's his primary
          motivation. Otherwise, the first answers to
          those   things   would  have   been   totally
          different."

          [(Emphasis added).]

     At the jury charge conference, defense counsel requested the

court include the subsection of the model jury charge on out-of-

court identifications labeled "Multiple Viewings,"4 arguing it

applied because T.J. had been shown photograph number five "three

or four times." The court rejected defendant's request, concluding

the charge was inapplicable to his theory of the case.

     During jury deliberations, the court received jury note C-3,

which contained the following two questions: (1) "Can we have a

copy of a list of all evidence[?]" and (2) "was crime scene report

[sic] entered into evidence and can we have a copy[?]"       After

conferring with the prosecutor and defense counsel, and securing

their consent, the court advised the jury that it could not create

an evidence list for them but they were free to compile their own.




4
  See Model Jury Charge (Criminal), "Identification: Out-Of-Court
Identification Only" at 5, 6 (2012).

                                17                         A-4030-14T4
The court further informed the jury, "you can have testimony read

back as well, if you like."

     The court also received jury note C-6, which read, "We would

like to see -- or in parenthesis -- or be re-read -- or read the

entire testimony of [T.J.], both direct and cross."         (Emphasis

added).    The court responded, "In fact, when you ask for testimony

of a witness, you get direct, cross, redirect, re-cross, and []

all testimony . . . ."    (Emphasis added).    The court reporter then

"read back" T.J.'s testimony.

     Defense counsel requested a sidebar and advised the court,

"The last question I asked her on [] re-cross was: Are you more

afraid . . . of the streets?           Or are you more afraid of the

police?"    The prosecutor responded, "I actually do remember that.

I do remember that.      I do."   The court agreed to look into the

matter and told the jury, "In listening to the testimony, there

may have been one or two questions or answers that may not have

been recorded. . . .       I'm going to ask you to continue your

deliberations.    However, we're going to double check, to make sure

that we had the complete testimony."

     An hour and forty-five minutes later, the court called the

jury in and advised them, "In response to your question, I have

reviewed the transcript and that is the entire testimony.      So, you



                                  18                           A-4030-14T4
can   continue   your   deliberations.   Okay?    That's   the    entire

testimony under the official court record."      (Emphasis added).

      The jury resumed deliberations and the court addressed the

attorneys "for the record."        The court noted it reviewed the

transcript and did not see the re-cross testimony, but it was

"aware that there is a backup system working in Trenton at all

times."   The court then explained,

           During lunch, I called Trenton to see -- I was
           always advised that you need a Court Order and
           I was always advised really then it had to be
           from the Assignment Judge, but I called
           Trenton to see the feasibility of assessing
           this record, this backup system, to see
           whether or not this question was even asked.
           I was called back and they told me again that
           I needed to have my Assignment Judge. . . .

           I also got a call from the Appellate Division
           while counsel was in my chambers, which said
           they heard I had a problem or something, and
           I talked to them. I told them I pretty much
           resolved this in my mind because we're in the
           middle of a homicide deliberation from a
           trial.   I'm certainly not going to recess
           trial and try to get a Court Order to assess
           something that the defense attorney -- and for
           the record, the Prosecution said they believe
           they heard it too and they were willing to
           stipulate to it -- to recess this to confirm
           it.

           I am going to go with the official court
           record, and as anyone knows who tries cases
           the official court record is the record that's
           provided by the official court reporter. And
           that's why I just advised the jury that under
           the official court record that's the entire
           testimony, and that's the position of this

                                  19                             A-4030-14T4
             Court. I don't know how I could do anything
             differently. And certainly, I don't think it
             would be appropriate to recess this trial
             because there ha[s] been a question and an
             answer that the attorneys believe was stated
             to this witness that wasn't included in the
             read back.

             [(Emphasis added).]

     On April 23, 2014, the jury found defendant not guilty of

conspiracy to commit murder (count one) and guilty of murder (count

two), unlawful possession of a weapon (count three), and possession

of a weapon for an unlawful purpose (count four).                      A trial was

then conducted on a separate indictment charging defendant with

certain persons not to possess weapons, on which the jury also

returned a guilty verdict.             On March 16, 2015, defendant was

sentenced to an aggregate sixty-five year prison term, subject to

NERA.   This appeal followed.

                                          II.

                                          A.

     We first address defendant's argument that the trial court

erred   by   failing   to    hold     a    hearing     on    whether    the    police

irreparably     tainted      T.J.'s       identification         of   defendant      by

conducting     the   photo     array       procedure        in   an   impermissibly

suggestive manner.     Defendant attacks the admissibility of T.J.'s

identification, based on suggestiveness and reliability, as well



                                          20                                  A-4030-14T4
as   the   police     failure    to     keep    a    record      of    T.J.'s     first

identification in which she identified someone else as the shooter.

     The State responds that "[d]efendant invited the error he now

challenges"   because     he    "never    requested        a    Wade    hearing     and,

instead, simply challenged the State's motion in limine to admit

[T.J.'s]   out-of-court        identifications."           It    further       contends

defendant "made a sound strategic decision . . . not to push the

suppression issue and opted to have the full opportunity to cross-

examine [T.J.]."

     Historically,      courts       followed   the     United        States    Supreme

Court's    two-part    test     to    determine      the   admissibility         of    an

eyewitness's out-of-court photographic identification, set forth

in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed.

2d 140 (1977), which was adopted by the New Jersey Supreme Court

in State v. Madison, 109 N.J. 223 (1988).                  In Manson, the United

States Supreme Court expounded on the test initially identified

in Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L.

Ed. 2d 1247 (1968), which requires a court to determine whether

the out-of-court photographic identification procedures used were

impermissibly suggestive.            Manson, supra, 432 U.S. at 114, 97 S.

Ct. at 2253, 53 L. Ed. 2d at 154.                   If so, the court then must

examine whether the objectionable procedure resulted in "a very



                                        21                                      A-4030-14T4
substantial likelihood of irreparable misidentification."                                    Id. at

116, 97 S. Ct. at 2254, 53 L. Ed. 2d at 155.

      When     examining       a    challenge               to   the       admissibility           of

identification        testimony,         a    court          must     assess       whether        the

impermissibly        suggestive      procedures              used     by    law     enforcement

prejudicially        affected      the       identification,               by    weighing        five

factors   to    "determine         whether         .    .    .   sufficient             indicia    of

reliability     [would]      'outweigh            the       "corrupting          effect     of    the

suggestive identification itself."'"                        Madison, supra, 109 N.J. at

239 (quoting State v. Ford, 79 N.J. 136, 137 (1979) (quoting

Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d

at 154)).      These factors "include the opportunity of the witness

to view the criminal at the time of the crime, the witness' degree

of   attention,      the    accuracy         of    his       prior     description          of    the

criminal,      the     level       of        certainty           demonstrated              at     the

confrontation,        and    the     time          between          the         crime     and     the

confrontation."        Manson, supra, 432 U.S. at 114, 97 S. Ct. at

2253, 53 L. Ed. 2d at 154.

      After     Madison,      the       Court          again        considered          eyewitness

identification challenges in State v. Delgado, 188 N.J. 48 (2006).

Noting "[m]isidentification is widely recognized as the single

greatest cause of wrongful convictions in this country[,]" id. at

60, the Court chose to exercise its supervisory powers, granted

                                              22                                            A-4030-14T4
by   Article   VI,    Section   2,   Paragraph    3    of   the   New    Jersey

Constitution, "to require, as a condition to the admissibility of

out-of-court   identifications,      that   the   police    record,     to   the

extent feasible, the dialogue between witnesses and police during

an identification procedure."           Id. at 51.     The Court held the

admissibility of out-of-court identifications was conditioned upon

the preparation of:

           a written record detailing the out-of-court
           identification procedure, including the place
           where the procedure was conducted, the
           dialogue   between   the   witness   and   the
           interlocutor, and the results. Preserving the
           words exchanged between the witness and the
           officer    conducting    the    identification
           procedure may be as important as preserving
           either a picture of a live lineup or a
           photographic array. When feasible, a verbatim
           account of any exchange between the law
           enforcement officer and witness should be
           reduced to writing.     When not feasible, a
           detailed summary of the identification should
           be prepared.

           [Id. at 63.]

      By that time, "[t]he State's Attorney General . . . ha[d]

recognized that eyewitness identification 'evidence is not fool-

proof,' and made New Jersey the first state to adopt the United

States   Department    of   Justice's     procedural    recommendations        to

increase reliability in photo and live lineups."            State v. Romero,

191 N.J. 59, 74 (2007) (citing Letter from Attorney General John

J. Farmer, Jr., to All County Prosecutors et al., at 1 (Apr. 18,

                                     23                                 A-4030-14T4
2001) (on file with the New Jersey Division of Criminal Justice)).

In that letter, the Attorney General instructed:

            When it is not possible in a given case to
            conduct a lineup or photo array with an
            independent    investigator,     the   primary
            investigator must exercise extreme caution to
            avoid any inadvertent signaling to a witness
            of a "correct" response which may provide a
            witness with a false sense of confidence if
            they have made an erroneous identification.
            Studies have established that the confidence
            level that witnesses demonstrate regarding
            their   identifications    is    the   primary
            determinant   of    whether    jurors   accept
            identifications as accurate and reliable.
            Technological tools, such as computer programs
            that can run photo lineups and record witness
            identifications independent of the presence of
            an investigator, as well as departmental
            training of a broader range of agency
            personnel to conduct lineups and photo
            identifications may also assist agencies and
            departments with staff and budget constraints
            in implementing this recommendation.

            [Letter from John J. Farmer, Jr., Att'y Gen.,
            to All Cty. Prosecutors, et al., at 2 (Apr.
            18,      2001)       (footnote      omitted),
            http://www.njdcj.org/agguide/photoid.pdf.]

     The Supreme Court revisited and comprehensively considered

this thorny issue in State v. Henderson, 208 N.J. 208 (2011),

which    established    a   more   detailed       framework   to   examine     the

admissibility of out-of-court identification testimony, provide

new guidelines to reduce the possibility of misidentification,

offer a more adequate measure for reliability, and deter potential

police    misconduct.        Id.   at        288-99.    However,    the     photo

                                        24                                A-4030-14T4
identifications at issue in the present case were conducted before

Henderson's new rule of law took effect and remain subject to the

prior rubric of Manson/Madison.5

       A trial court may need to conduct a pretrial Wade hearing

pursuant to N.J.R.E. 104 to determine whether the out-of-court

identification      should   be   suppressed   under   the    Manson/Madison

framework.     State v. Michaels, 136 N.J. 299, 320 (1994).                    In

Michaels,     the    Supreme       Court    "recognized      that    when      an

identification is crucial to the prosecution of a criminal case,

its reliability, and ultimate admissibility, must be strictly

tested through a searching pretrial hearing."             Id. at 319.

       There is no automatic right to a Wade hearing, and there must

first be a "threshold showing of suggestiveness" in a witness's

out-of-court identification.          State v. Ruffin, 371 N.J. Super.

371, 390-91 (App. Div. 2004).         While a trial court only needs to

address the issue of "taint" after finding the identification

procedure used was "unduly suggestive," the Supreme Court advised

trial courts "to hold a taint hearing and make specific findings

of fact on the independent reliability of the identifications"

when   the   identification       process   implemented   was   sufficiently

"questionable."      Madison, supra, 109 N.J. at 244-45.            It further


5
  See id. at 220 (applying new test prospectively, from September
4, 2012).

                                      25                                A-4030-14T4
noted "it is helpful to an appellate court if a trial court sets

forth its specific findings on why it deems a photo array not

impermissibly suggestive," and the failure of a trial court to

make such specific findings "unduly complicates appellate review."

Id. at 245 (second quotation quoting State v. Cooper, 165 N.J.

Super. 57, 67 (App. Div. 1979)).

      Here, the record does not support the State's contention that

defendant invited any error by failing to request a Wade hearing.

"The doctrine of invited error operates to bar a disappointed

litigant from arguing on appeal that an adverse decision below was

the product of error, when that party urged the lower court to

adopt the proposition now alleged to be error."                 N.J. Div. of

Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010)).

      It instead appears the State's in limine motion was discussed

at   an   earlier   proceeding,   when   it   was   indicated    it   was   not

necessary for defendant to formally file a Wade motion with respect

to T.J.'s out-of-court identification that the State sought to

admit.     Rather than inviting any error, defendant opposed the

State's motion, repeatedly requested a hearing, and argued that

suppression of T.J.'s identification, rather than its admission,

was the appropriate remedy.

      In any event, the court erred by failing to conduct an

evidentiary hearing on the State's in limine motion.             At the time

                                    26                                A-4030-14T4
the photo array was conducted, the State was required to preserve

the dialogue between the witness and questioner and the results

of that dialogue, by verbatim recording when feasible and, if not,

by detailed summary.        Delgado, supra, 188 N.J. at 63.    The State

failed to produce any record or summary of what occurred during

the first identification when T.J. selected photograph number two

and not the defendant's photograph.           The State was unable to

proffer any explanation why this recording was not preserved.

Moreover, the State all but conceded the process employed by the

police did not comport with the New Jersey Attorney General

Guidelines   concerning      photo   identification   procedures    because

Detective Kelly, and not an independent investigator, participated

in the second identification.        All these facts call into question

the   validity   of   the   identification   procedure.     Since    T.J.'s

identification of defendant was crucial to his prosecution, the

court should have conducted an evidentiary hearing to determine

the admissibility of that identification.

      Critical also is the court's failure to rule on the State's

in limine motion.       At the very least, the court erred in not

placing its findings on the record. During argument on the motion,

the judge acknowledged T.J.'s first identification "raises some

questions because it was recorded and it was lost.           And so then

the court would have to make a legal finding as to whether or not

                                     27                             A-4030-14T4
that was done in bad faith."        However, the judge failed to make

any findings with regard to this or any other aspect of the motion.

     Because we conclude this and other trial errors discussed

below cumulatively warrant reversal of defendant's convictions,

on remand we direct the trial court to conduct an evidentiary

hearing.   The court shall make specific findings regarding the

absence of a record of T.J.'s first identification and whether the

police procedures employed during T.J.'s identifications were

impermissibly suggestive.      Depending on those findings, the court

shall then determine whether the absence of a record of the first

identification, or any improper police procedures, created a "very

substantial      likelihood    of   irreparable      misidentification."

Madison, supra, 109 N.J. at 232.

                                    B.

     Defendant argues he was deprived of a fair trial due to

improper remarks made by the prosecutor during summation.                 He

contends   the    "cocoon"    analogy    was   inappropriate   because    it

"creat[ed] a hostile environment for the [d]efendant."            He also

asserts the State mischaracterized K.L.'s testimony, and that his

alleged fear was "not in evidence, but mere speculation by the

State."

     "Prosecutors are afforded considerable leeway in closing

arguments as long as their comments are reasonably related to the

                                    28                             A-4030-14T4
scope of the evidence presented."        State v. Frost, 158 N.J. 76,

82 (1999).    Prosecutors "are duty-bound to confine their comments

to facts revealed during the trial and reasonable inferences to

be drawn from that evidence."      Id. at 85.   "In determining whether

prosecutorial misconduct is prejudicial and denied defendant a

fair trial, [the courts] consider whether defense counsel made a

timely and proper objection, whether the remark was withdrawn

promptly, and whether the court ordered the remarks stricken from

the record and instructed the jury to disregard them."            State v.

Ramseur, 106 N.J. 123, 322-23 (1987) (citing State v. Bogen, 13

N.J. 137, 141-42, cert. denied, 346 U.S. 825, 74 S. Ct. 44, 98 L.

Ed. 350 (1953)).

     Prompt    and   effective   instructions    have   the     ability    to

neutralize prejudice engendered by an inappropriate comment or

piece of testimony.    State v. Wakefield, 190 N.J. 397, 440 (2007),

cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817

(2008).     Whether or not a curative instruction can eliminate the

danger of such an error "focuses on the capacity of the offending

evidence to lead to a verdict that could not otherwise be justly

reached."     State v. Winter, 96 N.J. 640, 647 (1984).

     In the present case, a significant portion of the prosecutor's

summation focused on K.L.'s alleged inconsistent statements.                A

prior   inconsistent   statement   may   be   introduced   to   neutralize

                                   29                               A-4030-14T4
testimony under N.J.R.E. 607, which, unlike N.J.R.E. 803(a)(1),

does not require the court to determine the prior inconsistent

statement is reliable.        State v. Nelson, 318 N.J. Super. 242, 252

(App.   Div.),     certif.   denied,      158    N.J.    687    (1999);    State      v.

Benthall,    182    N.J.     373,   380       (2005)     (emphasizing      a     prior

inconsistent statement is only admissible under N.J.R.E. 607 after

the trial court finds "the party seeking to neutralize had no

prior knowledge that the witness would testify contrary to the

prior statement").

     "Neutralization evidence may only be used to 'eras[e] or

cancel[]' surprising, harmful testimony.                      It may not be used

affirmatively, that is, for the truth of the matter being asserted.

Its use lies in assisting the jury only 'in deciding whether to

believe the testimony which the prior statement contradicts.'"

Id. at 385 (citations omitted).                 In such instances, the trial

court must give the jury a limiting instruction that "strongly

emphasize[s] that in no event is the jury to use the prior

statement as proving the truth of the matter therein allegedly

stated."     Id. at 379 (quoting State v. Gallicchio, 44 N.J. 540,

547 (1965)).

     Here, arguably the prosecutor's cocoon remark was based on

reasonable     inferences        drawn    from     the    witnesses'       pretrial

statements    and    was   not    plain   error.         We    reach   a   different

                                         30                                    A-4030-14T4
conclusion,   however,    regarding         the   prosecutor's   reference     to

K.L.'s recorded conversation with Bashir.

       As with K.L.'s statement to the detectives, the State could

have sought to admit K.L.'s recorded conversation with Bashir into

evidence for the truth of the matter asserted under N.J.R.E.

803(a)(1)(A).     Doing so would have required the State to establish

the reliability of that out-of-court statement by a preponderance

of the evidence at a hearing.               Gross, supra, 121 N.J. at 15.

However, the State decided not to pursue that course, and the

conversation with Bashir was never admitted in evidence.

       Moreover, the State did not attempt during K.L.'s testimony

to "examine the witness and introduce extrinsic evidence . . .

[to] neutralize the witness' testimony by a prior contradictory

statement."      N.J.R.E. 607.    Instead, the prosecutor waited until

closing argument to attempt to inform the jury of K.L.'s answers

to Bashir.    The court ruled that K.L.'s statement to Bashir could

not be offered for the truth of the matter asserted, but only to

show    K.L.'s     in-court      and    out-of-court       statements       were

inconsistent.     Nonetheless, the prosecutor argued in his summation

that the jury should accept K.L.'s statement to Bashir as truthful.

After   highlighting     K.L.'s   prior       inconsistent   statement,      the

prosecutor asserted, "I indicate to you that the inconsistency is

the truth."      (Emphasis added).

                                       31                               A-4030-14T4
     Perhaps this error could have been mitigated by a forceful

curative or limiting instruction.           However, the court failed to

instruct the jury on the limited purpose for which the testimony

was admitted.   Compounding the error, the court instructed the

jury:

           Evidence has been presented showing that at a
           prior time, a witness has said something, or
           failed to say something which is inconsistent
           with the witness's testimony at trial. This
           evidence may be considered by you as
           substantive evidence, or proof of the truth
           of the prior contradictory statement or
           omitted statement.

           [(Emphasis added.)]

While this instruction properly applied to K.L.'s statements to

the detectives and the grand jury, which were admitted into

evidence   following   the   Gross        hearing   pursuant   to   N.J.R.E.

803(a)(1)(A), the court never clarified to the jury that the same

instruction did not apply to K.L.'s out-of-court statement to

Bashir.

                                     C.

     Defendant argues the trial court erred by telling the jury

it read back to them T.J.'s "entire" testimony, even though both

the defense and the prosecution advised the court that a portion

of re-cross examination had been omitted.           Defendant contends the

omitted testimony was critical because it contradicted the State's


                                 32                                  A-4030-14T4
theory that T.J. was intimidated by defendant and supported the

defense    position   that    her     identification     was   coerced    by   law

enforcement.    Defendant argues, "The incomplete testimony made the

defense appear to be lying, incompetent or trying to deceive the

jury, as it was in direct contradiction to [d]efendant's closing

argument."

     "[T]he    response      to   a   jury's   request   for   a   readback      of

testimony or a replay of a video recording is vested in the

discretion of the trial judge."          State v. A.R., 213 N.J. 542, 555-

56 (2013).     That said, courts should grant such requests in the

absence of "some unusual circumstance," and they "should not

decline a request simply because it 'would take time.'"                  State v.

Miller, 205 N.J. 109, 120 (2011) (quoting State v. Wolf, 44 N.J.

176, 185, 186 (1965)).            When exercising that discretion, our

Supreme Court has instructed that generally "the entire testimony

requested should be played back — including direct and cross

examination — so that evidence may be considered in its proper

context.    Only then can a jury hear both direct proofs as well as

inconsistencies and impeachment material."               Id. at 122 (citation

omitted).     These "requests are a clear sign that the evidence

sought is important to the deliberative process" and "reflect the

reality that jurors cannot be expected to have perfect recall of

every bit of evidence introduced during a trial."               Id.   at 120.

                                        33                                A-4030-14T4
     Here, both the defense and the State agreed that testimony

had been omitted from the read back, and they further agreed on

the substance of that omission.      The court was aware it could

access the recorded testimony from the "backup system" with an

order from the Assignment Judge,6 and even acknowledged the State

was willing "to recess this to confirm it."    Moreover, the court

recognized the parties "were willing to stipulate" to the omitted

testimony.   Under these circumstances, the trial court should have

allowed the parties to enter into a formal stipulation as to what

was omitted, or taken the additional time to procure the backup

CourtSmart recording.     Its failure to adopt either of these

alternatives constituted an abuse of discretion.

     The court again compounded the error by misadvising the jury,

"That's the entire testimony under the official court record."     To

the extent, then, that any of the jurors properly recalled the




6
  The secondary recording made by CourtSmart can be accessed if
the primary recording system fails to record any portion of a
court proceeding, provided the Assignment Judge approves the
access and signs off on a form that is publicly available on the
Internet.   See New Jersey Administrative Office of the Courts,
Supplement    to   Directive    #    07-10   (Jan.    3,    2011),
https://www.judiciary.state.nj.us/attorneys/assets/directives/di
r_07_10_supp1.pdf; New Jersey Administrative Office of the Courts,
Directive        #       07-10        (Aug.       3,        2010),
https://www.judiciary.state.nj.us/attorneys/assets/directives/di
r_07_10.pdf.


                                34                          A-4030-14T4
excluded testimony, they were effectively instructed to disregard

it.

      The omitted re-cross examination was significant.    The jury

expressly requested T.J.'s entire testimony be read back, but they

did not receive it.   On redirect, T.J. stated she did not want to

testify and that she had fear about testifying. When asked whether

she was afraid to go back to the neighborhood, she equivocally

testified she has family there and is "always passing through."

Detective Gregory later testified T.J. was afraid of retaliation

for cooperating with the police.      In the testimony omitted from

the read back, T.J. clarified she was afraid of the police because

they threatened to incarcerate her for parking tickets.     If the

jury did not consider the re-cross examination, based on the trial

court's erroneous instruction, then it could not properly assess

whether T.J. was afraid to testify because of a threat of violent

retaliation from members of her neighborhood or the fear of police

intimidation.   In light of these circumstances, the court abused

its discretion in a manner capable of undermining the jury's

careful consideration of critical evidence.

                                     D.

      While perhaps any of the errors we have identified above,

standing alone, may be insufficient to warrant reversal, we agree

with defendant's contention that the cumulative effect of the

                                35                          A-4030-14T4
errors constrains us to reverse his convictions and remand for a

new trial.    "[W]here any one of several errors assigned would not

in itself be sufficient to warrant a reversal, yet if all of them

taken together justify the conclusion that defendant was not

accorded a fair trial, it becomes the duty of this court to

reverse."     State v. Weaver, 219 N.J. 131, 155 (2014) (quoting

State v. Orecchio, 16 N.J. 125, 134 (1954)).

      Summarizing these errors: (1) the court failed to conduct an

evidentiary    hearing   and   make   required    findings   regarding     the

admissibility    of   T.J.'s     identification        testimony;    (2)   the

prosecutor's summation improperly asked the jury to consider for

its truth K.L.'s statement to Bashir that was not in evidence and

could not be considered for its truth, and the court failed to

issue a limiting or curative instruction but instead instructed

that prior statements could be considered for their truth; and (3)

the   court   misadvised   the   jury      regarding   significant   re-cross

examination of a key prosecution witness of T.J., notwithstanding

the parties' willingness to stipulate to the excluded portion and

their willingness to recess the trial so the omitted testimony

could be retrieved.

      Viewed in the aggregate, these errors are significant because

the only evidence linking defendant to the murder came from the

out-of-court statements of those two witnesses who recanted at

                                      36                              A-4030-14T4
trial, testified their statements were the product of police

coercion,   and   were    unable    to    make   in-court   identifications.

Because the cumulative impact of these errors was capable of

producing an unjust result, we reverse the convictions and remand

for a new trial.

                                         E.

     We conclude defendant's remaining arguments do not support

reversal of his convictions and lack sufficient merit to warrant

extended discussion.        R. 2:11-3(e)(2).         We add the following

limited comments for the sake of completeness.

     Defendant argues the trial court failed to properly consider

and apply the Gross factors, resulting in the improper admission

of K.L.'s statement to police.           We disagree.

     We review a trial court's evidentiary rulings only for abuse

of discretion, and do not set such rulings aside unless it appears

that "there has been a clear error of judgment."            State v. J.A.C.,

210 N.J. 281, 295 (2012).          We must be convinced that "the trial

court's ruling is so wide of the mark that a manifest denial of

justice resulted."       Ibid.

     The admission of a prior inconsistent statement of a witness

at trial is governed by N.J.R.E. 803(a)(1).             State v. Johnson, 421

N.J. Super. 511, 516 (App. Div. 2011).               A prior inconsistent

statement is admissible as substantive evidence when offered by

                                     37                               A-4030-14T4
the party who called the witness if it is "contained in a sound

recording or in a writing made or signed by the witness in

circumstances establishing its reliability."              Ibid.   In order to

determine whether the circumstances provide sufficient indicia of

reliability, a trial court holds a hearing outside of the presence

of the jury to determine, by a fair preponderance of the evidence,

whether the circumstances surrounding the prior statement indicate

the   statement's   reliability.        Id.   at   517.     In    making   that

determination, the trial court must consider a number of factors:

           (1) the declarant's connection to and interest
           in the matter reported in the out-of-court
           statement, (2) the person or persons to whom
           the statement was given, (3) the place and
           occasion for giving the statement, (4) whether
           the declarant was then in custody or otherwise
           the target of investigation, (5) the physical
           and mental condition of the declarant at the
           time, (6) the presence or absence of other
           persons,    (7)    whether    the    declarant
           incriminated himself or sought to exculpate
           himself by his statement, (8) the extent to
           which the writing is in the declarant's hand,
           (9) the presence or absence, and the nature
           of, any interrogation, (10) whether the
           offered sound recording or writing contains
           the entirety, or only a portion of the
           summary, of the communication, (11) the
           presence or absence of any motive to
           fabricate, (12) the presence or absence of any
           express or implicit pressures, inducement or
           coercion for making the statement, (13)
           whether the anticipated use of the statement
           was apparent or made known to the declarant,
           (14) the inherent believability or lack of
           believability of the statement, and (15) the
           presence or absence of corroborating evidence.

                                   38                                  A-4030-14T4
           [Gross, supra, 121 N.J. at 10.]

       Here,    the   judge   examined       the   fifteen      Gross         factors     in

considerable detail and found they supported the reliability and

credibility of K.L.'s prior statements.               Our review of the record

fails to provide us with any reason to disturb the judge's factual

findings, analyses of the Gross factors, or conclusion that K.L.'s

statements were admissible as substantive evidence.

       Next, we reject defendant's contention that the trial court

erred in not including the "Multiple Viewings" subsection of Model

Jury      Charge         (Criminal),         Identification:              Out-of-Court

Identification Only (2012) in its instructions to the jury.                               By

its terms, the charge applies "[w]hen a witness views the same

person in more than one identification procedure."                            Here, T.J.

viewed    the     same    photo     array    twice     as    part        of    a    single

identification procedure.           Moreover, the parties disputed whether

T.J.'s subsequent identification of defendant was because she lied

the first time or was pressured by police the second time.                                In

either event, neither party claimed the second identification was

tainted    by     exposure     to    multiple        viewings       of        defendant's

photograph; hence, the charge was inapplicable.

       Finally,    defendant      argues     the   trial    court    erred         in   its

response to jury note C-3 because it "focused primarily on physical

evidence" and "testimonial evidence was only touched upon as an

                                        39                                         A-4030-14T4
afterthought."    However, defense counsel encouraged the court to

advise the jury it could create an evidence list from the physical

items it was already given.         The court's response was not only

correct   but   consistent   with   defense   counsel's   encouragement.

Defendant cannot complain because he invited the error.         State v.

Munafo, 222 N.J. 480, 487 (2015).        Additionally, as part of its

response, the court properly reminded the jury that testimony is

considered evidence and offered to read back any portion of the

testimony the jury requested.

     Reversed and remanded for a new trial.




                                    40                           A-4030-14T4
