February 28, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:
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 TO THE FACT THAT THE PROSECUTORIAL AUTHORITY LOST CRITICAL EVIDENCE IN DEFENDANT'S CASE. (Not Raised Below).
POINT IV: THE DEFENDANT'S SENTENCE IS EXCESSIVE.
In addition, defendant has submitted a supplemental pro se brief, which presents the following argument:
THE PROSECUTOR COMMITTED ERROR BY REPEATEDLY DENIGRATING THE DEFENSE ATTORNEY, MAKING IMPROPER REMARKS AND BY MISSTATING FACTS THROUGHOUT THE SUMMATION.
Defendant's arguments are clearly without merit. R. 2:11-3(e)(2). However, brief comment is warranted regarding a number of those arguments.
Defendant argues that the trial court committed reversible error when it denied his motion for a mistrial after Detective Tyrone Crawley of the East Orange Police Department testified that Jones identified defendant in a photo array assembled from photographs of persons arrested in Essex County. Defendant's argument is based on the following part of Detective Crawley's testimony:
Q. Before I lost track of papers on my desk, Detective, I asked you about the preparation of a photo display or photo array that was displayed to Zakiyah Jones. You prepared that?
Q. How did you go about preparing that?
A. Umm, I took Mark Caldwell's picture, I called up the Sheriff's Department and the Sheriff's Department was able to get the photo array for me.
Q. So you enlisted the assistance of the Essex County Sheriff's Department in assembling the photos used for the array?
Q. Why was it necessary to enlist the Sheriff's Department?
A. Because our database was only for the people that were arrested in the City of East Orange. When we called the Sheriff's Department, they have a database of everybody arrested in the county.
The trial court concluded that this testimony was not sufficiently prejudicial to require a mistrial and that any possible prejudice could be mitigated by a curative instruction. Consequently, the court gave the jury the following instruction:
You heard testimony from Detective Crawley before lunch relating to the contents of the photographic databases of both the East Orange Police Department and the Essex County Sheriff's Department. That testimony was incorrect, wrong, and inadmissible. I'm striking it, and you must treat is as stricken and incorrect and wrong.
I am striking this testimony from the record and it, therefore, may not be considered by you in any way during the course of this trial or during your deliberations. The photo of Mark Caldwell that is contained in the photo displays that were shown to the witness in this case is not an arrest photo.
The trial court should grant a motion for a mistrial "only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997). The determination whether a prejudicial comment requires a mistrial or can be adequately addressed by a curative instruction "is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." State v. Winter, 96 N.J. 640, 647 (1984). Accordingly, "an appellate court will not disturb a trial court's ruling on a motion for a mistrial absent an abuse of discretion that results in a manifest injustice." Harvey, supra, 151 N.J. at 205.
The trial court did not abuse its discretion in denying defendant's motion for mistrial based on Detective Crawley's reference to the photo array including a photograph of defendant that was assembled from photographs of persons arrested in Essex County. When Detective Crawley showed the photo array to Jones, defendant was already under arrest. Therefore, Detective Crawley's testimony that, "I took Mark Caldwell's picture," and then enlisted the aid of the Sheriff's Department in assembling the photos used in the photo array, could have been understood by the jury to indicate that defendant's photograph was taken after his arrest for the murder of Kerlissa Romeo rather than at the time of a prior involvement with the criminal justice system. Furthermore, the court instructed the jury that "[t]he photo of Mark Caldwell that is contained in the photo displays that were shown to the witness in this case [Jones] is not an arrest photo." We have to assume the jury accepted this curative instruction. Therefore, the trial court properly denied defendant's motion for a mistrial based on Detective Crawley's testimony about the preparation of the photo array.
Defendant argues that the trial court erred in failing to dismiss the indictment or to declare a mistrial and suppress evidence of the clothing he wore at the time of his arrest because the police lost that evidence after sending it to a laboratory to be checked for gunshot residue. The jury heard evidence that that check had been negative. Thus, the lost evidence was exculpatory in that respect, and defendant was not prejudiced by its unavailability at trial.
Nevertheless, defendant argues that he was prejudiced by loss of the jacket because Jason Romeo testified that the murderer was wearing a hood and Detective Guy Trogani testified that the jacket sent to the laboratory for testing contained a hidden compartment with a hood. Defendant claims that the loss of the hood prevented him from disproving that part of Detective Trogani's testimony.
However, even if the jacket defendant was wearing when he was arrested did not contain a hood, the exculpatory value of such evidence would have been limited because the evidence as to whether the murderer was wearing a hood was conflicting. Although Jason told the police at the scene and the grand jury that the shooter was wearing a hood, he did not mention a hood in his formal statement to police and he testified at trial that he did not recall the shooter wearing a hood. Alston did not mention a hood when describing the man she saw leaving the scene in her statement to police or her trial testimony. Jones testified at trial that defendant had a hooded garment on under his jacket, but did not mention a hood in either of her statements to the police. The inventories of clothing seized from defendant and sent to the laboratory for testing included a jacket, but did not indicate that it was hooded. Thus, the jacket would have had no clear exculpatory value.
Furthermore, the trial court instructed the jury that it could infer based on the State's loss of the defendant's clothing, including the jacket, that it would not have aided the State in proving its case:
In this case you heard testimony that the East Orange Police Department had in its custody and control the clothing that was worn by and seized from Mark Caldwell and Zakiyah Jones on November 9, 2005. This clothing was later submitted [to] the State of Connecticut Forensic Science Laboratory on or about July 6th, 2006 where it was analyzed for the presence of gunshot residue.
According to the testimony presented by the State, this analysis disclosed no gunshot residue on the clothing. Subsequently, the clothing was returned to the custody and control of the East Orange Police Department. The whereabouts of this clothing is currently unknown and it is presumed that the evidence has been lost.
I charge you that law enforcement has a duty to preserve all evidence. I further charge that the failure to preserve the clothing that was worn by and seized from Mark Caldwell and Zakiyah Jones on November 9, 2005, constitutes a breach of law enforcement's duty.
As a jury, you may consider in your deliberations the fact that the State has failed to preserve the clothing referenced above. While you may not speculate about what the results of any additional testing or examination of the clothing would, in fact, reveal in this case, you may nonetheless infer that the preservation of that clothing would not have aided the state in meeting its burden of proof in this trial, and you may consider the absence of this evidence in connection with your consideration of all of the evidence or lack of evidence presented to you in determining whether or not the State has proved the defendant guilty on any charge beyond a reasonable doubt.
Therefore, we conclude, particularly in light of the overwhelming evidence of defendant's guilt, that the loss of the jacket, and the testing of the hood in that jacket, did not deprive defendant of a fair trial.
Defendant also argues that his conviction must be reversed because the prosecutor denigrated defense counsel. In support of this argument, defendant relies upon the following two statements in the course of the prosecutor's lengthy summation:
If you are going to believe some of the stuff concocted by Mr. Morasse or put forth as scenarios, look at it in terms of time. . . . .
Now, Mr. Morasse concocted a great number of scenarios, basically involved other people and the amount of the money.
Defendant did not object to either of these comments at trial. Moreover, both comments were directed at defense counsel's own comments about the evidence. Thus, although the prosecutor should have avoided use of the word "concocted," the prosecutor's comment did not in any way suggest that defense counsel had fabricated evidence or committed any other form of professional impropriety. Instead, the prosecutor was simply arguing that defense counsel's interpretation of the evidence presented at trial was not reasonable and should not be accepted by the jury. Therefore, it was proper summation and certainly does not provide a basis for a reversal of defendant's conviction.
In arguing that his sentence was excessive, defendant argues that the trial court improperly identified the harm to the victim, that is, death, as an aggravating factor, because death of the victim is an element of the offense of murder.
However, the trial court did not in fact identify harm to the victim, N.J.S.A. 2C:44-1(a)(2), as an aggravating sentencing factor. Instead, the court identified "[t]he nature and circumstances of the offense, . . . including whether or not it was committed in an especially heinous, cruel, or depraved manner." N.J.S.A. 2C:44-1(a)(1). Specifically, the court stated:
[Kerlissa] Romeo was lying on the ground, her husband was lying on the ground next to her. Neither of them was resisting. Neither of them was protesting. Neither of them was threatening Mark Caldwell in any shape, manner or form. And one could only imagine the suffering that went through the mind of [Kerlissa] Romeo up until the point where that shot was fired.
Thus, in determining to impose a sentence of life imprisonment, the court distinguished the callous, execution-style murder of Kerlissa Romeo from a felony murder in which the victim resists and the robber responds violently to overcome that resistance. We find no error in the identification of this aggravating sentencing factor.
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