STATE OF NEW JERSEY VS. KEEVIN DAVID (11-12-2138, ESSEX COUNTY AND STATEWIDE), A-4546-12T3

Background

Defendant Keevin David was convicted of murder and related weapons offenses after two trials; weapons convictions came in first trial, murder conviction in retrial; sentenced to 55 years (NERA) plus concurrent weapon terms.
The homicide victim, Tyrell Coleman, was shot in a building lobby; surveillance and witness statements identified three males fleeing to a taxi; ballistics tied a recovered handgun to the murder.
Key prosecution evidence included: (1) Gregory Lieberman’s testimony implicating defendant or his companions and that Lieberman possessed the murder weapon; and (2) a recorded statement by Charles McBee that the defendant admitted he shot the victim.
Defense presented Asmar (Azmar) Carter to rebut McBee’s statement; Carter testified that he never spoke with defendant about the homicide and disputed McBee’s account.
At both trials, defense witnesses (Lieberman and Carter) testified wearing jail/prison clothing and handcuffs; the trial court conducted no hearing on restraints and gave no jury instruction about their appearance.
On appeal the Appellate Division found that Carter’s appearance in jail garb and restraints was prejudicial, warranted reversal, and remanded for a new trial; other arguments were left unaddressed as unnecessary to disposition.

Issues

Issue	State's Argument	David's Argument	Held
Whether a defense witness’s testimony while in jail clothing and handcuffs requires reversal	No plain error; defendant failed to object at trial; any error did not necessarily affect the verdict	Testimony of a key defense witness in prison garb and restraints without a hearing or jury instruction was highly prejudicial and denied a fair trial	Reversed and remanded; appearance in restraints and prison garb without hearing or instruction was prejudicial and required new trial
Whether court must hold a hearing and articulate reasons before restraining a witness	Restraints acceptable if court or counsel thought necessary; waiver argument since no contemporaneous objection	Court must hold an informal hearing and state reasons out of jury presence before shackling a witness; jury must be instructed not to consider restraints	Court reiterated requirement for hearing and record of reasons before shackling; failure to do so was reversible error in these circumstances
Whether witnesses may be required to testify in prison clothing	State did not dispute supervisory rule; emphasized procedural default	Forbids requiring witnesses to testify in prison garb because it serves no vital state interest and prejudices defendant	Court reaffirmed supervisory rule that witnesses should not testify in prison garb absent affirmative permission by the trial court
Whether plain error review applies and whether prejudice is shown	Error was waived; plain error standard should apply and not necessarily met	Even under plain error, the prejudicial effect here was sufficient to raise reasonable doubt about the verdict	Under plain error standard, the prejudice from Carter’s attire and restraints was sufficient to warrant reversal

Key Cases Cited

State v. Artwell, 177 N.J. 526 (2003) (explains prejudice from witness restraints and need for hearing and jury instruction)
Harrell v. Israel, 672 F.2d 632 (7th Cir. 1982) (requires court to state on record reasons for shackling a witness)
State v. Damon, 286 N.J. Super. 492 (App. Div. 1996) (discusses hearing and record when restraining a defendant/witness)
State v. Maisonet, 166 N.J. 9 (2001) (prison clothing furthers no vital state interest and is prejudicial)
State v. Yates, 381 A.2d 536 (1977) (noting prejudice of prison garb suggesting guilt by association)
State v. Macon, 57 N.J. 325 (1970) (plain error standard: error that raises reasonable doubt about outcome)
State v. Kuchera, 198 N.J. 482 (2009) (supervisory rule that witnesses should not testify in prison garb unless court permits)