                        NOT FOR PUBLICATION WITHOUT THE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
