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State of New Jersey v. Mark Caldwell

February 28, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARK CALDWELL, A/K/A ELLIOT JONES, A/K/A MARK D. CALDWELL, A/K/A MARK E. CALDWELL, A/K/A MARK ELLIOT CALDWELL, JR., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-05-1533.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 1, 2011 - Decided

Before Judges Parrillo, Espinosa and Skillman.

A jury found defendant guilty of felony murder, in violation of N.J.S.A. 2C:11-3(a)(3); aggravated manslaughter, in violation of N.J.S.A. 2C:11-4(c); two counts of robbery, in violation of N.J.S.A. 2C:15-1; possession of a weapon, a handgun, for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a); and unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5(b). The trial court sentenced defendant to life imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2, for the felony murder, and a concurrent five-year term for unlawful possession of a handgun. The court merged defendant's other convictions into his conviction for felony murder.

The murder occurred in East Orange shortly after midnight on November 9, 2005. As the victim Kerlissa Romeo and her husband Jason were walking back to their apartment from the Brick Church train station, they were accosted by a man with a gun, later identified as defendant, who said to them: "Get on the ground. Somebody's going to die tonight." Jason and Kerlissa immediately complied.

Jason heard defendant call out to someone and a female, later identified as co-defendant Zakiyah Jones responded "I'm coming." Jones put a hand into Jason's pockets and took the contents. Jason testified that the man then repeated, "somebody's going to die tonight," and shot Kerlissa in the head.

Jason and another witness, Crystal Alston, provided the police with descriptions of the perpetrators. A man and woman meeting those descriptions, later identified as defendant and Jones, were apprehended together within ten minutes of the shooting only a short distance away.

Shortly after she was apprehended, Jones admitted that she was with defendant when he shot Kerlissa and told police that defendant had discarded a gun about two blocks from where they were apprehended. The police found a gun in that area that was later determined to have fired the bullet that killed Kerlissa. Jones also admitted she had taken certain items from Jason's pocket, one of which was a receipt the police recovered after Jones showed them the area where she had discarded Jason's belongings. The receipt was for ice cream Jason had bought for his wife and himself shortly before the murder.

At defendant's trial, Jones testified for the State. She admitted removing items from Jason's pockets after defendant forced them to get on the ground. She then observed defendant shoot Kerlissa in the head.

In addition, Alston, who lived in an apartment close to the scene of the murder, identified defendant as the man she saw walking across the street toward her apartment shortly after hearing the sound of the gunshot that killed Kerlissa. Alston also identified defendant in a photo array shown to her by the police the day of the murder.

On appeal, the Public Defender presents the following arguments on defendant's behalf:

POINT I:

THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S REPEATED MOTIONS FOR A MISTRIAL, WHICH FOLLOWED THE ADMISSION OF A NUMBER OF PREJUDICIAL AND INADMISSIBLE REFERENCES. POINT II: THE PROSECUTOR COMMITTED ERROR BY REPEATEDLY DENIGRATING THE DEFENSE ATTORNEY AND BY MISSTATING FACTS. (Partially Raised Below). POINT III: THE TRIAL JUDGE ERRED IN FAILING TO DISMISS THE INDICTMENT OR DECLARE A MISTRIAL AND SUPPRESS EVIDENCE DUE ...


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